ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 October 2021 DOCKET NUMBER: AR20210005573 APPLICANT REQUESTS: through Counsel, the following: * reconsideration of his prior requests for physical disability retirement vice physical disability separation with severance pay, or * as a new request, approval of his Continuation on Active Duty (COAD) request, and constructive continuation on active duty, allowing for regular retirement at 20 years' service, and * as a new request, in effect, retirement back pay and allowances retroactive to his date of separation APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel's brief * exhibits A-H (with exhibit E omitted) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's cases by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AC93-09865 on 28 July 1993 and AR2001051695 on 1 May 2001. 2. Counsel states: a. The applicant, by and through his undersigned attorney, requests the ABCMR set aside his 15 December 1988 medical discharge (10 percent disability rating for chronic bronchitis and mild chronic obstructive lung disease secondary to smoking, and modify it by retiring him for disability as follows: * granting a 30 percent to 50 percent disability rating for post-traumatic stress disorder (PTSD) and mild traumatic brain injury (TBI) residuals of headaches as post-concussive symptom * * applying the 2017 Hagel memo "Clarifying Guidance to Boards for Correction of Military Records Considering Requests by Veterans for Modification of their Discharge due to Mental Health Conditions" which grants authority for liberal evidentiary principles to cases of PTSD * grant back pay and allowances * in the alternative to modifying his disability discharge as above requested, set aside the 1988 decision which rescinded the applicant's approved COAD and constructively continue him on active duty to reach 20 years for a regular retirement with back pay b. Rescinding the applicant's approved COAD for no reason at the 11th hour when he had over 18 years of active duty service was harsh and punitive. In the interest of equity, the current 2017 version of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-29 (Final disposition for unfit Soldiers on active duty with 18 but less than 20 years' service), contains significantly favorable due process which was unavailable in 1988. It mandates Secretarial review after and separate from any lower denial/disposition of COAD by the U.S. Army Human Resources Command (AHRC), and then Secretarial review applies special "equity" in such cases. If approved for retention, the Soldier will be managed or returned to the COAD program. The ABCMR, under its own charter to apply equity and uniformity in present and past cases, should consider whether an injustice occurred here when an approved COAD was rescinded without reasons, without Secretarial review, and without applying special "equity." Under Department of Defense Instruction (DODI) 1332.32 (Selective early Retirement or Removal of Officers on the Active Duty List, the Warrant Officer Active Duty List, or the Reserve Active Status List), the applicant's 1988 discharge is inequitable because current policy differs "in material respects...represents a substantial enhancement of rights." c. In 1988, the Medical Evaluation Board (MEB) did not recognize or inquire into the applicant's PTSD or any mental health issues, despite his Report of Medical History with red flags. In 2013, the Department of Veterans Affairs (VA) granted service- connection for PTSD with a rating of 30 percent, retroactive to 1993 based only on his claim date. An earlier effective date was denied as his appeal then was untimely. However, at the present time, the rating and effective date are in appeal. (See Ex D 13, 18). In any event, the VA acknowledges the stressor in 1988, and in the VA appeal in 1989. But for the technicality of not perfecting his 1989 denial (excusable due to suffering from PTSD), the 30 percent rating is contemporaneous with the December 1988 discharge. d. In support, the applicant had a history of trauma from 1981 with acute emotional reaction, inappropriate speech, prescribed valium for anxiety disorder, antidepressants, suicide attempt and hospitalization, abusing tobacco and alcohol; from there he continuously suffered from PTSD symptoms of depression, anxiety, and headaches as a. residual from mTBI (post concussive symptoms or "PCS"). Science now shows PCS co-evolves with PTSD, mutually aggravating the prior trauma. PCS and ongoing mental health conditions made him vulnerable to PTSD; the final stressor occurred in 1988 while witnessing a neighbor and friend shot dead by his wife. The applicant was later a trial witness for the prosecution. e. On his 1988 Report of Medical History for the MEB, he presented the 1981 history in detail, checked "yes" on 9 symptoms that today would screen positive for PCS and PTSD with serious anxiety and depression, including suicide attempt, insomnia and physical symptoms. At that time, the applicant was unaware of diagnostic intricacies of the new but vague PTSD; it was also not fully accepted by both the military and the VA. But today his report of medical history would have prompted a psychological referral or review of his entire medical and career history. Here it appears the red flags in his report of medical history were quickly dismissed as an isolated, benign event by the attending physician and MEB. There is no mention in the MEB narrative summary. f. The applicant had stopped smoking on order of the MEB, but under the heavy stress of disability proceedings at 18 1/2 years of service and retirement at stake, he resumed self- medicating his symptoms and several weeks after the 1988 traumatic incident, he suddenly withdrew his demand for formal PEB and hearing; this too manifesting PTSD symptoms of avoidance and social withdraw and isolation. Within 1 year of his 1988 discharge, VA records from an emergency room (ER) admission noted anxiety, depression, suicidal ideation, symptoms that were effectively PTSD and recommended hospitalization. He was diagnosed with depression, anxiety, and personality disorder. The use of personality disorder is the obsolete "sophisticated insult" for PTSD. There is no evidence he had a lifelong pattern of maladaptive behavior. In any event, in 2013, the VA recognized these symptoms as PTSD. g. With respect to rescinding his COAD, the applicant had over at 18 1/2 years' service. Soldiers with over 18 years are presumed to automatically apply for COAD, and usually approved. If they don't want COAD they must submit a written letter acknowledging they decline continuation. Yet, the applicant's approval was abruptly reversed, giving no reason, and presumed now ineligible. Soldiers are not eligible if the unfitness is due to their own misconduct or neglect, and/or their condition is not stable and may get worse. The PEB found no neglect; however, this could be reversed by a PERCOM bureaucrat. It was likely two reasons (1) unfitness was intentional conduct of smoking for 18 years, most particularly the conduct of resuming smoking after the MEB ordered him to cease, and then (2) continuing to abuse tobacco according to the MEB would worsen his pulmonary disabilities during continuation; so these conditions would not be "stable conditions," which was a criterion for COAD, per the 1990 version of Army Regulation 635-40, paragraph 3-10. But, he was suffering from undiagnosed PTSD and mTBI residuals, and smoking is now recognized as the first primary self-medication against symptoms. But without recognition and diagnosis of his PTSD and adequate treatment, he was left to substance abuse as medication, a catch-22 situation. He was afraid without smoking he would be unable to cope with the stress of the disability process, with intolerable nervousness, anxiety, and depression. But he was punished for resuming tobacco use. As noted above, Army Regulation 635-40, paragraph 4-29 now recognized this injustice of terminating unfit soldiers with over 18 years of service with mere severance pay. It elevates that decision to the Secretarial level. h. The provisions of law in Title10 U.S. Code on the retention of Soldiers on active duty after they complete 18 but less than 20 years of active service vary in addressing application to Soldiers who are determined unfit due to physical disability. In the interest of equity and uniformity across all components, these Soldiers will be dispositioned as follows: A Soldier on active duty will be provided Secretarial review when the disposition of their case is involves separation with entitlement to disability severance pay. The applicant understands this is not retroactive. However, the Army and the ABCMR do not always rigidly and callously apply legalisms in the face of injustice. The new provision does imply recognition of a past injustice in order to justify correcting this special due process for these soldiers. In other words, the adage applies- don't fix it unless it's broken. DOD regulation builds-in this equitable corrective to ensure uniformity and institutional integrity over time. The issue is will the Army, through the ABCMR, honor this pledge in his DD Form 214 and back pay. Institutional integrity also means leave no soldier behind, fit, unfit, or wounded. The applicant was left behind. It's time bring him home. i. Since 1988, the applicant has suffered from numerous disabilities in addition to PTSD, the obstructive pulmonary disease, also cardiac disease. His PTSD has increased in severity has orthopedic arthritis problems. The merits of this case are strong. It is primarily based on the fact that PTSD and TBI were not fairly recognized or understood in the 1980s as well as not even accepted at the VA. It is now understood how to interpret the events of in the 1980s, with the applicant suffering from PTSD and TBI that were not diagnosed. Until 2013, the VA had denied the applicant's service connection for PTSD. This was due in part to changes in rules that had previously placed stricter requirements on verifying evidence of in-service trauma for peacetime claims, not connected to combat, which presumes a sufficient stressor. The rules were relaxed making it similar to the combat related incidents. That change in rules delayed VA recognition of service connection until 2013. Further delay was the effective date of his service-connection is still under appeal to obtain additional evidence including the new Compensation and Pension (C&P) exam. j. Additional delays came as a result of Counsel's extended illness and hospitalization. Counsel had completed most of the case and substantial research, including into the 2017 Hagel Memo. Counsel was still waiting on the results a. of the VA remand. However, about that time counsel became severely ill and was hospitalized from December 2018 until July 2019, then was in rehabilitation for about 5 months. He returned to work on the case planning to file quickly but then in April 2020 was in a serious car accident (indirectly caused by his illness under previous hospitalization). He was then hospitalized 3 weeks. But oddly, 4 weeks later in July 2020, was hospitalized again for removing a gangrene gallbladder, sepsis, resulting from the car crash. Counsel was hospitalized at the Denver Veterans Administration Medical Center for his own combat related wounds and can provide a statement from his attending physician during that nearly 7-month hospitalization. During this time Counsel was unable to work but coordinated with his paralegal to have some cases transferred to another attorney; however, additional cases were not able to be transferred because the Counselor was either unavailable or his caseload was too high and this case requires attorney with some experience in military law and those are very few in the entire country. Counsel has been practicing only military law for 30 years. k. In 2017 the DOD change, expanding Hagel 2014 memorandum, continued the liberal evidentiary standards, but no longer was limited to Vietnam era veterans, nor those simply an "upgrade" from under other than honorable conditions (UOTHC) characterization. Although the 2017 amendment does not throw open the floodgates for every record correction, it does directly and indirectly apply here. Firstly, the 2017 memo no longer is limited to UOTHC discharge upgrade or characterization, but to "any petition seeking discharge relief, " including as just one example without stating any further limiting words, general discharges. Any petition seeking relief is broad. It is expected lawyers write or advised the Secretary and presumed to insert limiting or expansive language, such as "for petitions to upgrade general discharges to mitigate misconduct." But it did not. Certainly it is unfair for an applicant with general under honorable conditions misconduct discharge to have his or her PTSD petition reviewed under liberal criteria, and on the same day put into the different pile of cases excluded from the criteria simply because the stamp honorable is on the DD Form 214. This leads into another issue. This case can be brought within the ambit of the 2017 memorandum of "any petition seeking discharge relief' by modifying an adverse discharge. His case is adverse and relates to misconduct. l. The applicant has already argued that the rescinding of his approved COAD when he had over 18 years' service --and in the sanctuary zone- was harsh and punitive, and based upon his intentional conduct or neglect. But mitigating this conduct was self- medicating for PTSD, and mTBI. The VA in fact states that about the time he resumed smoking in 1988 was under intense stress of being discharged prior to reaching 20 years' service and stress from the traumatic shooting incident in 1988. m. With respect to the claim for disability retirement, a discharge when he was in the sanctuary zone provided by Federal statute, deprived him of expectation of retirement and Tricare health benefits. The loss of lifetime benefits is no less harsh than a UOTHC a. discharge losing benefits. The stigma can be overcome when employers will ask why he was discharged short of retirement and he must tell them misconduct and neglect. Although the DD Form 214 says disability with severance pay, they must wonder why only severance? He was in the sanctuary. Any employer would call a local recruiter who would tell the employer there must have been misconduct. Lastly, the Army and VA did not yet fully understand PTSD and TBI in the 1980s; this is one remedial purpose of the Hagel policy to apply current science. It is equitable to consider this appeal under the 2017 Hagel policy. n. The applicant entered the Army in October 1974 and did well making staff sergeant/E-6 in less than 6 years. However, in 1981 he had a series of catastrophic personal problems, including a difficult divorce, work problems, and a traumatic incident. Medical entries for May 1981 state he was "having severe personal problems, ... crying spells." He was diagnosed with anxiety disorder and prescribed Valium. (See Ex H 1). In early June 1981, the applicant attempted suicide and was "hospitalized for emotional instability" over a pending divorce. He was despondent over the welfare of the children. (See Ex. H 2). o. This was followed by the traumatic incident in August 1981, with his new girlfriend and himself, who were involved in a shooting of another vehicle [she] was charged with attempted murder and armed violence, the applicant shot out the tires of the other car setting it on fire. (See Ex. H 4). He was not charged, but the entire traumatic incident left him depressed and distraught. He still had crying spells. He was prescribed antidepressants by a military psychiatrist. (See Ex. H 4). He was abusing alcohol and he started smoking two packs of cigarettes a day. Recent science shows that for sufferers of PTSD, daily smoking and problems with alcohol use tended to develop after first trauma exposure, which is broadly consistent with the self- medication hypothesis. Smoking is the first form of substance abuse in PTSD cases. (M. Forbes, et al. Smoking, PTSD, and Alcohol Use Disorders in a Nationally Representative) Drug Alcohol Depend. (2015 Nov 1); 156: 176-183. p. In September and October 1981, the applicant was suffering from insomnia, in emotional instability. He also complained about back spasms and lower back pain. Recent studies show that after trauma lower back pain is a predictor of PTSD. see S. Paylo and G. Beck, Post-traumatic stress disorder symptoms, pain, and perceived life control: Associations with psycho social and physical functioning Pain. 2005 Sep; 117(1-2): 121-127 (70 percent reported general back pain, while 72 percent reported lower back pain). In October 1981, on a new routine physical it was reported that he had a history of head injury about a year ago with continuing headaches. (See EX.H 7, 9). q. In August 1983, he was screened for depression and found positive and noted a history of this in September 1981. (See Ex. H 8). In April 1985 it was first reported that a. he had moderate obstructive lung disease and chronic bronchitis. (See Ex. H 13). In February 1986, he reported having severe headaches that lasted all day under stressful situations. (See Ex. H 16). Entry shows he reported a previous history of head injury related to the headaches, implying they began after the TBI (otherwise why would he even mention the prior head injury). He was simply given Tylenol and quarters for 2 days. There was no discussion at that time of that these headaches were or likely a persistent post concussive symptoms. (See Ex. H 15). They were found to be a mere garden variety "tension headaches." Under today's standards this would be a positive TBI screening requiring further examination. r. In 1987, he reported to mental health clinic for "occupational problems," and was screened. There was no entry other than he sought assistance and counseling and is noted by a social worker. (See Ex. H 14). In January 1988, he reported having chest pains for the past 2 years along with radiating back pain. (See Exhibit H 18). In May 1988, he reported headaches; however, this was attributed to or confused with a viral syndrome. (See Exhibit H 17). In August 1988, a Military Occupational Specialty (MOS) Medical Retention Board (MMRB) found his medical condition of chronic bronchitis precluded satisfactory performance in any MOS worldwide and recommended referral to the physical disability system. (See Exhibit B 6). s. As part of the disability processing, the applicant completed a Report of Medical History, marking "yes" to attempted suicide, frequent or severe headaches, dizziness or fainting spells, shortness of breath, pain or pressure in chest, palpitation or pounding heart, recurrent back pain, frequent trouble sleeping, depression or excessive worry, nervous trouble of any sort. On the backside of the form, the attending physician adds brief notes stating "suicide attempt 1981 hospitalization September." And he then notes "depression worry, nervous 81." This is nothing more than entering detail as if a machine were entering data; this is not the sole purpose of the form. Rather, it is to raise concerns relevant to the disability process. There is no referral or hand off to a mental health specialist to explore this history with his entire record and present his mental state. (See Ex. B 3, B-3A). t. In October 1988, the MEB found him unfit based on chronic bronchitis, mild chronic obstructive lung disease, tobacco use, and mild to moderate severe high frequency hearing loss. (See Ex. B 9). In the MEB narrative summary, it twice noted that after a pulmonary test the applicant was told to stop smoking, but "despite the fact he had discontinued tobacco use he has subsequently restarted tobacco use." Listed as "habit" it added that "one pack per day for approximately 18 years, still presently smoking." (See Ex. B 11-12). The MEB skipped over the report of medical history with numerous red flags over mental health and mTBI. u. On 2 October 1988, the applicant experienced second traumatic incident. He was assisting his neighbor with an apparently difficult marriage when the wife shot and a. killed her husband. The applicant was "present with the victim after the fatal gunshots were fired." The wife was charged with murder and the applicant was a witness in the wife's trial in 1989. The VA decision in 2011 accepted this as an in-service stressor qualifying for PTSD. (See Ex. D 8, 19). v. On 25 October 1988, the informal PEB concurred with the MEB, issuing a 10 percent disability rating. It also determined the disabilities were not the intentional misconduct or neglect of the applicant. It also stated "the board finds that the Soldier has approximately 18 years of active service." On 27 October 1988, the applicant did not concur with the PEB and requested a formal PEB with personal appearance. (See Ex. B 15-16). However, on 28 October 1988, he withdrew his request for a formal Board. The ABCMR later offers pure speculation that "after explanation of his rights, and the meaning of the PEB, and in effect he withdrew his request" and accepted the informal PEB. (See Ex. F 6). Yet, taken in context of is past history of acute reaction to trauma and the present incident, the applicant was manifesting a PTSD symptom of avoidance, withdrawal, and isolation from a stressful situation. w. With respect to COAD, the applicant even today affirms there was no reason for rescinding the approved COAD. However, it must be presumed "tobacco use" and resumption was considered intentional conduct or neglect. Secondly in smoking for a long time, then after the MEB he stopped, only to resume. (See Ex. F 6). It is also possible that the applicant during the disability proceeding downplayed his symptoms of mental health because he was trying to stay on active duty, and not raise any red flags. In an Army MEDCOM policy letter in 2012, it states that service members often do not report PTSD symptoms or other mental health as they are trained to fall back on their training, or they do not report as it harms their careers. (See Ex. G 5). It is a kind of catch-22 where the Army has found the soldier unfit in the PEB and must be discharged, yet under COAD and over 18 years, they are allowed to continue on active duty. This established that many service members refrain from getting needed treatment in an effort to avoid interfering in some way with their careers until symptoms become overwhelming. (See Ex. G 5). The applicant withdrew his request for a formal PE B because of the recent traumatic incident combined with the stress of a formal hearing would be too overwhelming so he decided to rely on the informal PEB. In December 1988, the applicant was discharged with over 18 years' service with severance pay, rated at 10 percent disabled for chronic bronchitis, and history of tobacco use. (See Ex. F 6). x. In February 1990, the applicant reported to the emergency room of the VA hospital complaining of depression, suicidal ideation. The history of suicide medical records state that he had a history of depression in the Army, Notes state- "yes" daily suicide ideation is hostile has destructive dreams feelings of failure worthlessness hopelessness yet a history of suicide attempts is taken value overdose alcohol abuse expresses rage and anger impulsivity; he reports insomnia irritability, restlessness, a. diagnosis was major depression, personality disorder, anxiety disorder; he is recommended for admission but refused; taking antidepressant." (See Ex. C 1-2). y. In February 1991, the applicant, requested evaluation. The notes state major depression report agitation tension anxiety irritability concentration problems temper diagnosis was major depression with anxiety prescribed Valium. (See Ex. C3). In June 1992, he reported to the emergency room with symptoms of nervousness, stating that people are getting messages to him, he was having bad headaches, anger. Notes were social isolation, withdrawal, irritability, impaired cognition, and memory, forgetfulness, depressed. His diagnosis was depressive disorder and anxiety. (See Ex. C 4-5). In December 1992, the applicant was admitted for 30 days' drug rehabilitation for cocaine abuse. (See Ex. C 6). From 1992 to 2001, he was treated by his primary care doctor for depression and anxiety. He was prescribed Effexor. (See Ex. C 7-12). z. In 2005, the VA denied the applicant service connection for PTSD and headaches. It stated that his own personal statement and VA treatment records are insufficient to establish a stressor occurred sufficient to cause PTSD trauma. With respect to the headaches, it also stated that Army treatment records show no permanent or chronic condition sufficient to warrant a disability. It noted there were interventions and ongoing complaints. After Army service VA treatment records do not show headaches. However, the applicant points out that the science of this time concerning mTBI and post concussive syndrome, and PTSD was not sophisticated. The interaction between TBI residuals and PTSD are mutually aggravating. A post concussive syndrome residual of mTBI does not require constant debilitating headaches 24/7. The VA overlooked the 1986 Army entry stating he had "tension headaches" but dating only after head injury. The purpose of headaches from a TBI is only to show he was vulnerable to developing PTSD. Jon Hamilton states, "War studies suggest a concussion leaves the brain vulnerable to PTSD Good Morning Edition, NPR (a TBI changes the brains amygdala so that it increases the response to frightening experiences thus making the brain more vulnerable to PTSD). (26 September 2016). Post-concussive syndrome may be diagnosed from one or more the following: l) headache, 2) dizziness, 3) fatigue, 4) irritability, 5) insomnia, 6) concentration or 7) memory difficulty, and 8) intolerance of stress, emotion. The applicant met those criteria. C. Boake, et al. Diagnostic Criteria for Postconcussional Syndrome After Mild to Moderate Traumatic Brain Injury, J Neuropsychiatry, 2005; 17(3):350-6. aa. In 2011, the VA relaxes it rules to prove peacetime PTSD. In 2011, it grants the applicant service connection for PTSD at 30 percent, effective 2004. (See Ex. D 19-20). On appeal of a 2013 decision, the effective date is moved back to 1993, based on the date of the new claim. (See Ex. D 15-16). Appeal is pending on an earlier effective date and higher rating. (See Ex. D). a. bb. The applicant applied to the ABCMR on the basis that the PEB inaccurately calculated his disability rating. He did not raise any issues about PTSD, TBI, or to reverse the rescission of his approved COAD. In the first 1993 appeal to the ABCMR he states the PEB inaccurately calculated his disability percentage and the VA awarded additional disabilities it overlooked (See Ex. F 4). In the second denial in 2001, he argued that the VA in 1999 had found him unemployable and increased other pulmonary conditions. He said the Army should have considered these as well. (See Ex. F 9-10). Thereafter, in 2013 the VA granted service connection for PTSD effective 1993--that remained on appeal within the VA at the time the 2017 Hagel policy was issued. The VA diagnosis of PTSD is a relevant factor set forth in the 2017 Hagel policy. cc. In summary; the VA effective date of 1993 notwithstanding, the VA acknowledges his stressor in 1988, and VA appeal in 1989. But for the VA rule technicality of not perfecting his 1989 denial (excusable while suffering from PTSD), the 30 percent rating is still contemporaneous with the December 1988 Army discharge. Supporting that he was suffering from PTSD at the time of his discharge is his prior mental health history; remarkable for prior trauma and acute reaction of severe depression with anxiety, suicidal ideation, anger, irritability and substance abuse. This is further complicated by TBI post concussive symptoms of severe headaches, with self- medication by tobacco abuse. Even a mTBI post concussive symptom of headaches can aggravate early PTSD symptoms. Brenner, Assessment and Diagnosis of mild TEL PTSD, and Poly Trauma Rehabilitation Psychology 2009, Vol 54, No 3, 239 - 246 (most common post concussive symptom of mild TBI is headaches; post concussive symptoms co-evolve and mutually worsen). dd. Due to the stress of the disability process, the applicant resumed smoking as self-medicating, despite the MEB order to cease. They noted this twice in their summary as if to underscore fault and neglect, or it would make his condition worse-- likely one primary reason for rescinding his COAD approval. In addition, refusal or inability to stop abusing tobacco according to the MEB would likely worsen his pulmonary disabilities during continuation; so these conditions would not be stable, which is a criterion for COAD. Thus, a second related reason denying continuation. But without recognition and diagnosing his PTSD and providing adequate treatment, he was left resorting to substance abuse as medication. Any fault and neglect lies elsewhere. Under today's Army Regulation 635-40, review of the approved COAD for Soldiers with over 18 years would be not left to low level PERSCOM or AHRC bureaucrat, but elevated to Secretarial review that then applies special "equity" in the retention decision. ee. Lastly, to support he was suffering from early PTSD symptoms in 1981, was his duty performance, which was affected and career advancement, previously quick, had virtually halted and never was again promoted. Although today, Soldiers with mild-to moderate PTSD can be retained if treated early and managed. But also in 1980s, the a. applicant, like most Soldiers at that time, did not want the shame and stigma of a PTSD label. For the foregoing reasons, the applicant requests that the ABCMR grant relief as set forth above. 3. After a prior period of honorable service in the Regular Army, the applicant again enlisted in the Regular Army on 15 October 1974. 4. Numerous service medical records were submitted with the applicant's request, all of which have been provided to the Board for review, and include the following: a. A Standard Form 600 (Chronological Record of Medical Care), dated 7 May 1981, shows the applicant was seen at a U.S. Army Health Clinic with severe personal problems and crying spells. He was assessed as having anxiety. b. A Standard Form 600, dated 8 June 1981, shows the applicant was seen at a U.S. Army Health Clinic for a follow-up after having been hospitalized at St. Elizabeth's for emotional instability. While out on pass he attempted suicide on 6 June 1981. He was at present going through a divorce and was very despondent over the welfare of his children. c. Subsequent Standard Forms 600, dated from August - October 1981 show the applicant was depressed with spells of crying, severe emotional stress, abdominal spasms, and excessive drinking of alcohol. d. A Standard Form 558 (Emergency Care and Treatment), dated 5 February 1986, shows the applicant was seen at the Emergency Room, Fort Ord Army Community Hospital for complaints of a headache lasting for 2 hours. The applicant stated stressful situations cause his headaches and that he had a previous history of head injury. He was assessed with a tension headache and given quarters for 12 hours, with instructions to follow-up as needed. e. A Standard Form 600, dated 5 February 1986, shows the applicant was seen with complaints of a severe headache. The applicant stated he had a history of tension headaches and was in a stressful situation all day. 5. A DA Form 3349 (Physical Profile), shows on 16 February 1988, the applicant was given a permanent physical profile rating of "3" in the category P (Physical capacity or stamina) due to bronchitis, with a rating of "1" in all other categories. He was limited to running at his own pace and distance. 6. A Summary of MMRB Proceedings, dated 1 August 1988, shows the applicant's medical condition of bronchitis precluded his satisfactory performance in any MOS in a 1. worldwide field environment and recommended him for referral to the Physical Disability System. 7. A Standard Form 93 (Report of Medical History), dated 22 September 1988, shows the applicant indicated he either currently had or ever had the following conditions: * coughed up blood * attempted suicide * wore glasses * frequent or severe headache * dizziness or fainting spells * ear, nose, or throat trouble * chronic or frequent colds * severe tooth or gum trouble * shortness of breath * pain or pressure in chest * chronic cough * palpitation or pounding heart * high or low blood pressure * cramps in legs * adverse reaction to serum, drug or medicine * broken bones * tumor, growth, cyst, cancer * rupture/hernia * VD (venereal disease)-syphilis, gonorrhea, etc. * recent gain or loss of weight * recurrent back pain * frequent trouble sleeping * depression or excessive worry * nervous trouble of any sort * having been treated for a mental condition 8. A Standard Form 88 (Report of Medical Examination), undated, but containing annotation of multiple test results dated in September 1988, shows the applicant underwent medical examination for the purpose of the PEB, presumably in September 1988. The listed defects and diagnoses are bronchitis with a P3 physical profile and decreased hearing. 9. A MEB Narrative Summary (NARSUM) dated 6 October 1988 shows the following: a. The applicant's chief complaint was a chronic productive cough and shortness of breath with resultant decrease in physical exertion. The history of his present illness a. shows the applicant presented to the Troop Medical Clinic in 1985 with a complaint of shortness of breath, chronic productive cough of a few months' duration, and inability to keep up with his unit during physical training. He was found to have an abnormality on his chest x-ray, manifested as a spot in the left lower lung. He was felt to have bronchitis and chronic obstructive lung disease secondary to smoking and was told to discontinue tobacco use. b. In February 1988, the applicant presented to the Internal Medicine Clinic with a request for a permanent physical profile due to limitations on his exercise ability as a result of his chronic bronchitis and mild chronic obstructive pulmonary disease. He stated he had stopped smoking in February 1988, but subsequently restarted tobacco use and still has a chronic productive cough. c. The applicant's diagnoses are listed as follows: * chronic bronchitis (primary reason for MEB) * mild chronic obstructive lung disease secondary to tobacco use * tobacco use * mild to moderately sever high frequency hearing loss d. It was determined the applicant did not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and it was recommended he be presented to the PEB for consideration of separation under the provisions of Army Regulation 635-40. 10. A MEB Addendum, dated 18 October 1988, shows as part of the applicant's MEB physical, the applicant had audiometry performed, which was significant for mild to moderate severe high frequency hearing loss. The applicant was without complaints of hearing impairment. 11. A DA Form 3947 (MEB Proceedings) shows the following: a. A MEB convened on 11 October 1988, when the applicant was credited with 18 years and 7 months of active military service and found him to have the following conditions: * chronic bronchitis (primary reason for MEB), date of origin 1985 * mild chronic obstructive lung disease secondary to tobacco use * tobacco use * mild to moderately severe high frequency hearing loss b. The applicant was referred to a PEB. a. c. The applicant indicated he did desire COAD under Army Regulation 635-40 and on 20 October 1988, he signed the form indicating he had been informed of the findings and recommendation of the Board and agreed with the Board's findings and recommendations. d. The signing physician indicated that COAD under the provisions of Army Regulation 635-40 was medically contraindicated (disadvantageous, or potentially improper or undesirable and should not be used/granted due to the risks involved) and entered no assignment limitations. The findings and recommendations of the Board were approved on 20 October 1988. 12. A DA Form 199 (PEB Proceedings) shows the following: a. A PEB convened on 25 October 1988 and found the applicant physically unfit for chronic bronchitis with mild obstruction and history of tobacco use (MEB diagnoses 1- 3). This unfitting condition was not found to be due to intentional misconduct, willful neglect, or unauthorized absence. The PEB recommended a combined rating of 10 percent and that the applicant be separated from the service with severance pay if otherwise qualified. b. The comments show the applicant applied for COAD and the recommended disposition in item 9 (unfitness with a combined rating of 10 percent and separation with severance pay if otherwise qualified) would apply if his application for continuance were denied. c. The condition listed as MEB diagnosis 4 (mild to moderately severe high frequency hearing loss) was considered by the PEB and found to be neither unfitting nor ratable. d. Disability ratings of less than 30 percent for Soldiers with less than 20 years of service require Soldiers to be separated from the service with severance pay. It was noted by the PEB that the applicant had approximately 18 years of active Federal service. e. On 27 October 1988, after having been advised of the findings and recommendations of the PEB, and having received a full explanation of the results and findings and legal rights pertaining thereto, the applicant did not concur and demanded a formal hearing with personal appearance and requested regularly appointed counsel represent him. 13. A memorandum from the USAPDA, dated 27 October 1988, notified the applicant of a Formal PEB hearing scheduled for 8 November 1988 and that during the proceedings he would have an opportunity to examine and cross-examine witness and 1. present his case orally and in writing. He was informed his appointed military counsel would assist him in preparing and presenting his case to the PEB. 14. On 28 October 1988, after a full discussion of his case, the applicant requested withdrawal of his request for a formal PEB hearing and concurred with the findings and recommendations of the PEB held on 25 October 1988. He indicated he made this election after a full explanation of his rights and the meaning and effect of the PEB informal rating. 15. A USAPDA memorandum dated 18 October 1988, addressed to Headquarters, Department of the Army (DA), advised that the applicant's finding of unfitness was approved and his case was now forwarded for their consideration of the applicant's application to remain on active duty as an exception to policy under the provisions of Army Regulation 635-40, chapter 6, pertaining to the continuance of disabled personnel on active duty. 16. A U.S. Army Military Personnel Center memorandum, dated 7 November 1988, shows: a. The applicant's request for COAD under the provisions of Army Regulation 635- 40, chapter 6, was approved. In connection with this decision, and provided he is otherwise qualified, the applicant was authorized to be retained on active duty until his current expiration of term of service (ETS) and then authorized extension of enlistment by sufficient time to complete 20 years of active federal service. b. If during the COAD period the applicant is unable to perform assigned duties because of existing or a new medical condition, he would be referred to the Medical Treatment Facility (MTF) for reevaluation. The MTF would reevaluate and process his case through the Physical Disability System under the provisions of Army Regulation 635-40, chapter 6. 17. A U.S. Army Military Personnel Center memorandum, dated 23 November 1988, shows their memorandum dated 7 November 1988 regarding continuation of disabled personnel on active duty pertaining to the applicant was rescinded in it's entirety. 18. An Unclassified U.S. Total Army Personnel Command Message, dated 23 November 1988, shows the applicant was to be discharged with severance pay due to physical disability under the provisions of Army Regulation 635-40, with a disability rating of 10 percent, effective 30 December 1988. 19. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged due to physical disability with severance pay on 1. 15 December 1988. He was credited with 14 years, 2 months, and 1 day of net active service this period and 3 years, 11 months, and 10 days of total prior active service. 20. The applicant previously applied to the ABCMR on two occasions requesting correction of his records to reflect physical disability retirement in lieu of physical disability separation with severance pay. a. Those requests are summarized in the previous considerations of the applicant's cases by the ABCMR in Docket Numbers AC93-09865 on 28 July 1993 and AR2001051695 on 1 May 2001. b. In the first case, the Board determined his applications were not submitted within the time required and there was not sufficient justification to conclude it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed. c. In the second case, the Board denied his request, determining there was no basis for granting his request and that he failed to submit sufficient evidence to demonstrate he existence of a probable error or injustice. 21. The applicant provided numerous post-service medical and court records, all of which have been provided to the Board for review, which include in pertinent part the following: a. A consultation Sheet, dated 12 December 1990, shows the applicant seen by Psychiatry at an unspecified medical facility for depression and suicidal ideation with a history of suicide attempt. b. A Consultation Sheet, dated 29 June 1992, shows the applicant was seen at an unspecified medical facility for concerns of nervousness, headaches, social isolation, irritability, impaired concentration, depressed mood and given a provisional diagnosis of borderline personality. c. A VA Medical Record Report, dated 12 January 1993, shows the applicant was admitted to a VA Hospital on 30 December 1992 for treatment of cocaine abuse and dependence. He was discharged on 13 January 1993. d. St. Elizabeth's Hospital Discharge Instructions, dated 12 June 1999, show the applicant was admitted to the Psychiatry Ward on 7 June 1999 for an unspecified condition and released on 12 June 1999. e. A letter from the Illinois State Police, dated 2 July 1999, indicates the applicant possessed a Firearm Owner's Identification (FPID) Card and that State statutes granted a. the authority to the department to revoke and seize the FOID cared of any individual who has been a patient in a mental facility within the past 5 years. The applicant's FOID cards in his possession were to be returned to the department. f. A Monterey County, Office of the District Attorney letter, dated 28 January 2004, confirms the applicant participated in the jury trial of for the murder of her husband, as a witness for the prosecution in approximately 1989 and that he was present with the victim moments after the fatal gunshots were fired. g. A letter from a psychiatrist, dated 26 August 2008, shows the applicant was under the care of the psychiatrist's office for the treatment of PTSD and bipolar disorder. His symptoms included paranoid ideas, auditory hallucinations, mood swings, depression, feelings of hopelessness, flashbacks, and crying. His prognosis was guarded. 22. The applicant provided numerous VA Rating Decisions and VA Decision Review Officer Decisions, which include the following: a. A VA Rating Decision, dated 23 May 1995, shows the applicant's request for service connection for PTSD, headaches, and muscle condition of the arms and hands was denied. b. A VA Rating Decision, dated 15 April 2005, shows the applicant's request for service connection for hypertension secondary to emphysema, PTSD, situational adjustment disorder with depressed mood, and back condition with bulging disc were denied. c. A partial VA Rating Decision, dated 22 September 2006, shows the applicant's request for service connection for hypertension secondary to emphysema, PTSD, situational adjustment disorder with depressed mood, and back condition with bulging disc were denied. d. A VA Decision Review Officer Decision, dated 24 February 2011, shows the applicant's request for service connection for PTSD was granted with an evaluation of 30 percent effective 10 August 2004. e. A VA Decision Review Officer Decision, dated 16 May 2013, shows the applicant's request for service connection for PTSD was granted with an earlier effective date of 29 September 1993. 23. 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 1. have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 24. 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. 25. 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. 26. In the adjudication of this case, an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA) on 1 June 2021, which states: a. This memorandum is in response to a request for an advisory opinion regarding the applicant's request for a retroactive retirement due to an undiagnosed PTSD condition, or, in the alternative, to be allowed to constructively continue on active duty (COAD) so he can reach 20 years of active federal service (AFS) and be given back pay. For the reasons below, we find the request to be legally insufficient in part and the USAPDA makes no comment in part. b. The applicant was medically discharged on 15 December 1988. He was separated with severance pay, with a 10 percent disability rating, for his lung condition. At the time of discharge, the applicant admits that he was not diagnosed with PTSD. The applicant now seeks to add his then undiagnosed PTSD as an unfitting condition and that it be rated at 30 percent so that he can be medically retired. In the alternative, he seeks to have his COAD request retroactively approved and that he be allowed to constructively retire with 20 years AFS and that he be paid back pay. The applicant argues that this is allowable under the current Army Regulation 635-40, Para. 4-29, which would require Secretarial review and approval to separate Soldiers who have over 18 years AFS, but less than 20 years AFS. The applicant admits that the current Army Regulation 635-40 was unavailable in 1988. After having been denied three previous times by the VA, on 24 February 2011, the VA retroactively service- connected his PTSD claim to 29 September 1993. In its findings, the VA recognized that the applicant was never diagnosed with PTSD while he was on active duty. c. The applicant admits that he disclosed his mental health issues to the MEB and that the MEB considered them (although the applicant contends they were deemed to be isolated and dismissed by the MEB provider). The applicant also admits that he a. requested a Formal PEB, but then withdrew his request the next day. On 28 April 1993, the applicant filed an appeal to ABCMR seeking to be medically retired for his lung condition, as well as hypertension, depression, and back problems. The ABCMR noted that the applicant admitted that these conditions were the same ones he had while on active duty. On 28 July 1993, the ABCMR ruled that Mr. Bibbs appeal was not timely filed and that he demonstrated no justification for the late filed appeal. Subsequently, the ABCMR dismissed the applicant's appeal. Sometime thereafter, the applicant requested the ABCMR reconsider its ruling. On 22 May 2001, the ABCMR upheld its earlier ruling to dismiss the applicant's appeal. d. The VA applies its own policies and regulations to make service connection and rating determinations. It is not bound by determinations made by the Army. Likewise, following its own policies and regulations, the Army makes its own determinations with respect to conditions that meet or fail retention standards and/or are fit or unfit. However, unlike the VA, the Army's determination of fitness and its application of ratings is a snap shot in time, whereas the VA can make service connection and rating determinations throughout a veteran's life. If it were not, then there would never be any finality to a Disability Evaluation System (DES) case. As admitted by the applicant, his mental health issues were documented in his medical records and were considered by the MEB. After careful review and consideration, the applicant's mental health condition was not determined to fail retention standards and was not referred to the PEB. The applicant appealed his PEB findings of severance pay, but then withdrew that appeal the very next day. The applicant's case was then finalized and he was separated with severance pay. e. The applicant presented no evidence of any wrongdoing by the MEB or PEB. The applicant's real issue is one of remorse for not being either medically retired or allowed to COAD. The PEB does not approve or disapprove requests for COAD so it cannot speak as to whether the disapproval of the applicant's COAD request was proper or not. The applicant argues that as a matter of equity, or fairness, today's regulations should be applied retroactively to his 1988 case. If that were the case, then a DES case would never reach finality as the Army is constantly revising and implementing new policies and regulations. f. Finally, the applicant argues that should his then undiagnosed PTSD be found to be unfitting that he should be rated at 30 percent. For similar reason above, this would be speculative as the VA did not make a service connection and rating determination until 29 September 1993 (retroactively). It is unknowable what, if any, stressors existed between when the applicant was separated to when the condition was service connected. For instance, it is likely his post-service drug use had a deleterious effect on his mental health. The presented case file does not make it clear what/if any error the MEB and/or the PEB committed at the time of the applicant's case in 1998. Therefore, the matter is legally insufficient in part and the PDA makes no comment in part. a. 27. On 20 July 2021, a copy of the advisory opinion was provided to the applicant and his representing Counsel to allow them to submit comments. Counsel responded to the advisory opinion on 12 August 2021, stating the following: a. The opinion does not contest that the current COAD regulations would have provided a substantially favorable result that shocks the conscience, that the applicant would never have been medically discharged vice medically retired. The USAPDA does not operate under the mandate to remove injustice as does the ABCMR. Rather, it clings to legally rigid premise that nothing should look backward, as it results in bureaucratic upheaval. This only addresses correcting "error" without removing "injustice." The ABCMR can act as individualized adjudicators particular to the facts or it can act in other cases with broad impact. The applicant's case calls out for uniqueness as applied to his situation, as the brief already sets forth. Even courts can step outside in equity in certain cases where injustice is writ large. b. The ABCMR can act separate from rigid law and recognize injustice in individual cases. In fact, the new COAD regulation states precisely, "in the interest of equity and uniformity across all components, these Soldiers will be dispositioned as set forth below...a Secretarial review...A Soldier on active duty will be provided Secretarial review..." This language in the regulation is now driven and speaks to recognition of past inequity, such as in the applicant's case. The 2014 Hagel and other 2017 memoranda also speak of equity and uniformity over time. Failing to recognize the past mistreatment of his COAD denial at low levels without reasons with over 18 years' service and unique circumstances, creates and perpetuates a new injustice. For the foregoing reasons and for those put forth in the prior legal brief, the applicant requests that the ABCMR grant relief as set forth above. 28. MEDICAL REVIEW: a. Applicant is applying to the ABCMR requesting reconsideration of his prior requests for physical disability retirement for Post-Traumatic Stress Disorder (PTSD) and mild traumatic brain injury (TBI). The Army Review Boards Agency (ARBA) Psychologist reviewed this case. Documentation reviewed included the applicant's completed DD Form 149 and supporting documents, his ABCMR Record of Proceedings (ROP), and the VA electronic medical record (JLV). b. The ABCMR ROP outlines the details and circumstances of the applicant's military history. After a prior period of honorable service in the Regular Army, the applicant again enlisted in the Regular Army on 15 October 1974. He was honorably discharged on 15 December 1988 due to physical disability with severance pay. a. c. Due to the period of service, no active duty electronic medical records (AHLTA) were available for review. Applicant submitted hand-written Army medical documentation from the time of service. An Army Health Record dated 7 May 1981 lists a diagnostic impression of Anxiety and another record dated 8 June 1981 reveals that the applicant was psychiatrically hospitalized the week prior due to "emotional instability" secondary to stress associated with his divorce. A psychiatry progress note dated 28 September 1981 states that applicant was experiencing "severe emotional stress". An Army medical note dated 2 August 1983 states that applicant had a history of Depression from August to September 1981. Mental Hygiene Consultation Service note dated 1 May 1987 lists a diagnosis of Occupational Problems. d. A Medical Evaluation Board (MEB) Proceedings document dated 11 October 1988 lists the following medical conditions: chronic bronchitis, obstructive lung disease, tobacco use, and hearing loss. The document indicates referral to a Physical Evaluation Board (PEB), but is void of any behavioral health conditions. PEB Proceedings document dated 25 October 1988 is also void of any behavioral health conditions. e. Post-service hand-written medical documentation from 12 December 1990 to 9 October 2003 reveal that applicant has a history of treatment for Major Depression with Anxiety, suicidal ideation, and a personality disorder. A letter from a psychiatrist at Metroeast Neuropsychaitric Services dated 30 January 2001 states that applicant is under psychiatric care for a diagnosis of Bipolar Disorder with psychotic features, and a letter from a psychiatrist at Southern Illinois Heart Institute dated 26 August 2008 states that applicant is under psychiatric care for Post-Traumatic Stress Disorder and Bipolar Disorder. f. Review of VA electronic medical record (JLV) indicates that the applicant is 80% service connected to include 30% for PTSD and several other non BH conditions (emphysema, degenerative arthritis of the spine, tinnitus). The VA medical record also diagnoses him with Bipolar I Disorder; Adjustment Disorder; Anxiety Disorder; Psychosis; Paranoid Personality Disorder; Cocaine Abuse and Dependence. According to a Compensation & Pension (C&P) Exam dated 9 February 2011, applicant's traumatic stressor that led to his service connection for PTSD was an incident that occurred while he was active duty in which he responded to a neighbor's request for help after she shot her husband in the head. This exam also diagnosed him with Bipolar Disorder and Psychotic Disorder, which were determined to have developed after his discharge from the military and not be directly linked to his military service. Applicant was denied service connection for PTSD upon three prior evaluations before the 9 February 2011 C&P Exam service connected him retroactively back to 1993. Applicant has engaged in inpatient and outpatient behavioral health and substance abuse treatment at the VA since 1993. Documentation dated 17 January 2021 reveals that the applicant is deceased. a. g. After review of all available documentation, there is evidence that applicant was treated for anxiety and depression while in service. However, there is no evidence that applicant was diagnosed with PTSD or TBI while active duty, including MEB/PEP documentation that is void of any behavioral health conditions. While the VA has service connected him for PTSD that was diagnosed post-service, the VA conducts evaluations based on different standards and regulations which do not address whether a medical condition met or failed Army retention criteria or if it was a ratable condition during the period of service. Therefore, applicant's request for a referral to the military disability evaluation system for PTSD/TBI is not supported. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was not warranted. The Board considered the applicant's contentions, military record, regulatory guidance and the conclusions of the medical review. The Board concurred with the medical review finding insufficient evidence of a behavioral health condition that existed at the time of service Based on the preponderance of the evidence, the Board determined the evidence presented insufficient to warrant a recommendation for 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, United States 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. 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 and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical a. impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 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. Paragraph 4-29, currently in effect, provides guidance on the final disposition for unfit Soldiers on active duty with 18 but less than 20 years' active service. It states the provisions of law in Title 10 U.S. Code on the retention of Soldiers on active duty after they complete 18 but less than 20 years of active service vary in addressing application to Soldiers who are determined unfit due to physical disability. In the interest of equity and uniformity across all components, these Soldiers will be dispositioned as set forth below. (1) A Soldier on active duty will be provided Secretarial review when the disposition of their case is one of the following: * separation with entitlement to disability severance pay * separation without entitlement to disability benefits * (2) A Soldier may waive Secretarial review by submitting a written statement to the U.S. Army Physical Disability Agency (USAPDA) in which they attest their desire to waive this process and to proceed with their disability disposition. (3) The processing requirements for Secretarial review include the following: * the USAPDA is responsible for ensuring a service computation is performed by the appropriate transition center to confirm the Soldier meets the 18, but less than 20 year criteria * the USAPDA will submit the case through the Deputy Chief of Staff, G-1 to the Assistant Secretary of the Army (Manpower and Reserve Affairs) for final approval or disapproval to separate the Soldier or to defer disability disposition until have the Soldier obtains 20 years' active service (4) Retention under Secretarial review provides that when the Assistant Secretary of the Army (Manpower and Reserve Affairs) directs that a Soldier pending separation with or without entitlement to disability benefits be retained to 20 years of active service, the Soldier will be managed as a Continuation on Active Duty (COAD). (5) Generally, Soldiers retained as a result of Secretarial review will be retired effective the first day of the month after the Soldier attains 20 years' active service. A Soldier initially entitled to disability severance pay will generally be retired for permanent disability with the disability rating percentage initially awarded. A Soldier may waive disability retirement for regular retirement. A Soldier whose initial disability disposition was separation without entitlement to benefits will retire for length of service. d. Chapter 6 (Continuation on Active Duty and Continuation on Active Reserve (COAR) Status of Unfit Soldiers), also currently in effect, prescribes the criteria for Soldiers to receive COAD, as applicable, subsequent to being found unfit after completion of the duty-related Disability Evaluation System Process. (1) The purpose of a COAD/COAR exception to policy is to conserve manpower by effective use of needed skills or experience in a limited duty status. (2) The fact that a Soldier has or has not applied for COAD or COAR ill not influence the determination of fitness or the determination of the disability rating percentage, when applicable. (3) A Soldier who has been found unfit by a Physical Evaluation Board (PEB) for further military service has no inherent or vested right to continuation. (1) (4) Soldiers must elect to be considered for COAD or COAR. However, the Secretary of the Army or designee may involuntarily continue the Soldier in consideration of the Solder's service obligation, special skill, or experience. (5) Requests will be approved based on the needs of the Army. Requests will not be approved solely to increase the Soldier's separation or retirement benefits. (6) A status of COAD or COAR is not authorized until a finding of unfit is approved by the USAPDA. e. Paragraph 6-3, currently in effect, states the Soldier must meet the criteria listed below to have their request for COAD or COAR, as applicable, considered. (1) The Soldier is not on the Temporary Disability Retired List (TDRL). (2) The Soldiers request must be submitted within the timeline and with the required documents. (3) The disability for which the Soldier was found unfit must not be due to the Soldier's misconduct, willful negligence, or incurred when the Soldier was absent without authority. (4) The Soldier must meet at least one of the criteria listed below to be eligible for consideration of COAD or COAR: * for COAD, have at least 15 but less than 20 years of active service; for COAR have at least 15 but less than 20 years of qualifying service for non-regular retirement * be qualified in a critical skill or shortage military occupational specialty (MOS) * the disability resulted from combat or terrorism f. Paragraph 6-5, currently in effect, provides decision criteria for COAD and COAR requests. Approval of an eligible request remains subject to the needs of the Army. In addition, the approval authority will use the criteria and considerations below to decide approval or disapproval. (1) The Soldier's unfitting disabilities must be basically stable or of slow progression according to accepted medical principles (2) The Soldier's disability must not be detrimental to the Soldier's health or the best interests of the Army. For example, the disability does not preclude the Soldier from being physically capable of performing useful duty, does not require undue loss of (1) time from duty for medical treatment, and does not pose a risk to the health or safety of other Soldiers. (3) Considerations include the following: * time in service * level of performance, trends in efficiency, and professional values and/or attributes * performance prior to injury * ability to attend professional military education * the ability to lead or positively influence Soldiers 4. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 5. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental 1. acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. 7. 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. 8. 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. 9. 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. //NOTHING FOLLOWS//