IN THE CASE OF: BOARD DATE: 24 May 2023 DOCKET NUMBER: AR20220010125 APPLICANT REQUESTS: in effect, * physical disability retirement * personal appearance before the Board via video/telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * personal letter * Orders R-05-001626, 12 May 1992 * DA Form 4187 (Personnel Action), 30 September 1992 * Orders 181-01, 2 November 1992 * Orders revocation memo, 4 November 1992 * Orders 183-01, 4 November 1992 * Orders 104-007, 17 June 1993 * DA Form 4187, (Correction of promotion date), 30 June 1993 * DA Form 4187, Request Permanent Change of Station (PCS), 13 August 1995 * Request for PCS recommendation, 29 August 1995 * Vet Center letter, 7 May 1996 * DA Form 4187, Absent without leave (AWOL), 6 June 1996 * DA Form 4187, Present for duty (PDY), 6 June 1996 * DA Form 268, (Report to suspend favorable personnel actions (FLAG), 6 June 1996 * Affidavit (5 pages), 3 July 1996 * DA Form 268, 22 July 1996 * DA Form 4187 (AWOL), 22 July 1996 * Discharge order, 23 August 1996 * Vet Center letter, 4 September 1996 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 11 September 1996 * medical record consultation sheet, 12 September 1996 * DA Form 268, 26 September 1996 * Department of Veterans Affairs (DVA) rating decision (8 pages), 31 March 1997 * DVA decision letter (3 pages), 9 April 1997 * DVA entitlement amounts (5 pages), 1 August 2002 * eBenefits printout * DVA letter, 12 July 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states she was unable to complete the remaining months of service for eligibility of retirement after 10 years due to disability, because of sexual assault, post- traumatic stress disorder (PTSD), depression, anxiety, harassment, and lack of support. She was prevented from continuance of her career. In a personal letter she states, in part: a. Prior to going on active guard reserve (AGR) status she was with the 55th Support Center, Fort Belvoir, VA. Captain (CPT) W__ was also a member of this unit and the commanding general’s best friend. CPT W__ harassed the women of the unit and was protected by the general. She was sexually assaulted/raped by CPT W__ and threatened to stay quiet by the general. She was asked by Major (MAJ) R__ how long had CPT W__ been acting in such an egregious manner towards women. b. The reason he was able to act in the manner that he had was because he was protected by the general. There were several letters which had been addressed to the general requesting restraint or dismissal of CPT W__. All requests were met with a threat of dismissal and disdain treatment by both the general and CPT W__. In secret MAJ R__ reported CPT W__ to the Inspector General's (IG) office and an undercover investigation was completed by an IG agent during two drill weekends. CPT W__ was convicted of conduct unbecoming, numerous counts of sexual harassment, and sexual assault. The general received a permanent letter of reprimand. c. Less than one year from retirement eligibility she was harassed physically and mentally to no end immediately after arriving at the 766th Transportation Battalion Evansville, IN. She was sexually assaulted/raped by Sergeant (SGT) J__ within a week of arriving. She had to learn the chain of supply. During a 400+ mile drive to Indianapolis with SGT J__ and an overnight stay at the Fort Benjamin Harrison Visitors Quarters after he got drunk, he somehow opened her room door. She awoke attempting to fight off SGT J__ who was laying on her back ripping off her clothes with one hand and pressing her face into the pillow while leaning on her neck. She slept on her stomach and could do nothing to defend herself from his sexual attack. After finishing the attack SGT J__ got up and told her, she had better keep her mouth shut. d. She ran downstairs to the lady on duty and called the military police. Her unit commander was called but nothing was done. She was forced to ride back to Evansville with SGT J__. Immediately upon return she was met at the door the next morning by CPT B__ and Sergeant First Class W__. After being ushered into CPT B__'s office she was told, "If you want to keep your job, you’d better keep your mouth shut, it will be hard to feed your kids without a job. Now get out of my office!" e. She was forced to work in the sweltering heat or freezing cold in a storage bay outside the building. Her leave was denied each time she requested. Her promotion was denied for two years without cause. She began recording interactions with the commander and building manager verified by the IG office. The entire three-page letter is available for the Board’s review. 3. The applicant enlisted in the Regular Army on 15 September 1987. She held military occupational specialty (MOS) 72E (Tactical Telecommunications Center Operator). 4. She was released from active duty on 5 April 1988, due to pregnancy. She was transferred to U.S. Army Reserve (USAR) Control Group. Her DD Form 214 shows she completed 6 months and 21 days net active service this period. 5. She entered a period of active-duty training (ADT) on 22 August 1990. She was awarded MOS 71L (Administrative Specialist). She was released from ADT on 16 February 1991, after completion of period of active duty for special works (Desert Shield). Her DD Form 214 shows she completed 7 months and 4 days of net active service this period. 6. The applicant was ordered to active duty on 7 April 1991. The applicant provided Orders R-05-001626, issued by U.S. Army Reserve Personnel Center, St. Louis, MO, on 12 May 1992, showing she was on active duty in AGR status assigned to 766th Transportation Battalion, Evansville, IN with a report date of 31 August 1992, to be supply sergeant. a. DA Form 4187 requesting advancement to sergeant/E-5 with a retroactive effective date of 30 September 1992. The reason for the request was the documentation for this promotion was misdirected. b. Orders 181-01, 2 November 1992, showing she was promoted to sergeant (E-5) effective 2 November 1992. c. Orders revocation memo, 4 November 1992, showing her promotion was revoked due to her not completing primary leadership development course which was a requirement for promotion to E-5. d. Orders 183-01, 4 November 1992, showing Orders Number 181-01 were revoked. e. Orders 104-007, 17 June 1993, showing she was promoted to sergeant (E-5) effective 18 June 1993. f. DA Form 4187, 30 June 1993, requesting correction of promotion date with a retroactive date of 28 September 1992. g. DA Form 4187, 13 August 1995, requesting PCS to three locations in FL. There was no reason for the request attached. (1) Request for PCS, first endorsement on 29 August 1995, recommending approval. (2) Disapproval, of her request on 2 October 1995, stating tour stabilization for AGR enlisted Soldiers is five years. The applicant was not eligible for voluntary reattachment until 50 months of the stabilization period is completed. The applicant was notified of this decision on 26 September 1995. Reference AR 140-30, 1 September 1994, (Active Duty in Support of the USAR and AGR Management Program), paragraphs 4-4a and 5-9 (8) b. 7. Her records contains an evaluation of fitness for duty, 20 November 1995, which shows a diagnosis of chronic mechanical low back pain and bilateral knee pain. The recommendation was the applicant is medically unacceptable for further active duty in accordance with (IAW) Army Regulation (AR) 40-501 (Standards of Medical Fitness), paragraph 3-41c (1), therefore her case should be presented to the Medical Evaluation Board (MEB). 8. MEB Narrative Summary with an evaluation on 18 January 1996, shows her complaint of chronic mechanical low back pain and bilateral knee pain which has been unresponsive to conservative therapy. Her symptoms impair the performance of her MOS duties. 9. She was issued a DA Form 3349 (Physical Profile) on 20 February 1996, for chronic mechanical lower back pain and patellofemoral dysfunction (bilateral knees). 10. A MEB was convened on 25 February 1996, which referred her to a Physical Evaluation Board (PEB) for the following unfitting conditions: a. Patellofemoral dysfunction, bilateral knees, with mild subluxation of patellae bilaterally. Medically unacceptable IAW AR 40-501, paragraph 3-41e (1). b. Chronic mechanical low back pain with muscle spasm with no radicular symptoms. Medically unacceptable in accordance with AR 40-501, paragraph 3-41e (1). c. Mild chronic endocervical strain, presently not medically unacceptable. d. The applicant did not desire to continue on active duty under AR 635-40 (Physical Evaluation for Retention, Retirements, or Separation). e. The finding and recommendation of the board was approved on 25 February 1996, and the applicant agreed on 28 February 1996. 11. Report of mental status exam (10 pages), 3 April 1996, shows the applicant was referred for evaluation by the Disability Determination Bureau for the purpose of a mental status examination. The examining clinical psychologist provided the following diagnosis: * Axis 1: Adjustment Disorder with Mixed Anxiety and Depressed Mood, Chronic * Axis II: Personality Disorder not otherwise specified with Obsessive-Compulsive Traits * Axis III: chronic knee and back pain; deferred to physician * Axis IV: unable to work maintain former employment * Axis V: current Global Assessment of Functioning (GAF)=75 12. On 4 April 1996, an informal PEB convened and found the applicant's following conditions unfitting with a combined rating of 10 percent: a. Chronic mechanical low back pain with spasm rated at 10 percent. b. Pain, both knees, with mild subluxation of patellae bilateral rated at 0 percent. c. The board recommended that the applicant’s disposition be separation with severance pay if otherwise qualified. d. The applicant did not concur and demanded a formal hearing. 13. The applicant provides Vet Center letter, 7 May 1996, stating she came to the Vet Center on 7 March 1996 with a request for follow-up for anxiety and depression and for help with readjustment upon being discharged from the military. She also presented with a history of sexual harassment and assault during the military. 14. Her records show on 23 May 1996, a note indicated the applicant has a formal hearing scheduled for 11 July 1996. She submitted documentation from a civilian clinical psychologist for use in the hearing. It has been reviewed and approved by both Dr. L__ a psychiatrist, and Dr. W___, who is acting on behalf of the DCCS (unknown). 15. On 3 June 1996, a formal PEB notification was sent to the applicant notifying her of a formal PEB hearing was rescheduled for 17 June 1996 at 0830 hours. 16. The applicant provided: a. DA Form 4187 which shows she was reported as AWOL effective 0830 hours, 6 June 1996. b. Another 4187 showing her duty status was changed from AWOL to PDY effective 0845 hours, 6 June 1996. c. DA Form 268 shows a flag was initiated effective 6 June 1996, for adverse action. 17. On 17 June 1996, a Formal PEB convened and found the applicant unfit and recommended a rating of 10 percent. Having considered all the evidence available to include the medical evidence and comments of counsel, the Board found her unfit to perform the duties of a 92Y20. This determination was reached for the following specific reasons: a. The functional limitations of her condition prevents satisfactory performance of duty in her grade and MOS. b. Condition 1, Chronic mechanical low back pain with spasm, is rated under Veterans Affairs Schedule for Rating Disabilities (VASRD) Codes 5299-5295 rated 10 percent. c. Condition 2, Pain both knees with mild subluxation of patellae bilateral, is rated under VASRD Codes 5257-5003 rated 0 percent. d. The report of mental status exam was reviewed. The Board found the condition not to be unfitting. e. The Board therefore recommends that she be separated from service with severance pay with a disability rating of 10 percent. 18. Formal election statement of understanding, 26 June 1996, shows the applicant was notified that she had 10 days to file an election and a written rebuttal, if applicable. The applicant concurred. 19. Memo for LOD determination, 27 June 1996, shows the PEB proceedings were forwarded for a LOD determination with respect to the injury incurred in December 1991, at Fort Meade, MD. 20. The applicant provided an Affidavit (5 pages), 3 July 1996, related to treatment that she received at 766th Transportation Battalion on or about 6 July 1992. The entire Affidavit is available for the Board’s review. 21. The applicant also provided DA Form 268, showing she was flagged for adverse action effective 22 July 1996. It was also marked HQDA directed reassignment. 22. The applicant provided a DA Form 4187, showing her duty status was changed from PDY to AWOL effective 0830 hours, 22 July 1996. 23. On 5 August 1996, a LOD determination was reached showing a presumptive finding of In Line of Duty for pain in both knees she experienced in October 1987, at Fort Jackson, SC and for the back pain she experienced in December 1991, at Fort Meade, MD. 24. Orders D-08-800151, issued by U.S. Army Reserve Personnel Center, St. Louis, MO, on 23 August 1996, shows she was to be discharged from the USAR/AGR, effective 11 September 1996, IAW AR 635-40. 25. Accordingly, she was honorably discharged on 11 September 1996, due to disability, severance pay IAW AR 635-40, paragraph 4-24B (3). Her DD Form 214 shows she completed 5 years, 5 months, and 5 days net active service this period. Remarks shows she received $21,445.20 in disability severance pay. 26. The applicant also provided: a. Vet Center letter, 4 September 1996, showing the dates from 7 March 1996 – 5 September 1996 that she was seen at Vet Center by S.P., R.N.C. Readjustment Counselor/Nurse. b. Medical record consultation sheet, 12 September 1996, showing she was seen by a private physician for depression for several years. c. DA Form 268, 26 September 1996, showing a flag removal effective 26 August 1996, due to the case closed favorably. d. DVA rating decision (8 pages), 31 March 1997, showing her service-connected conditions in support of her claim. The 8 pages are attached in documents for review. e. DVA decision letter (3 pages), 9 April 1997, showing: * adjustment disorder 30 percent disabling * chronic obstructive pulmonary disease 10 percent disabling * low back pain 10 percent disabling * left knee condition 10 percent disabling * right knee condition 10 percent disabling * overall combined evaluation was 60 percent overwritten by hand showing 70 percent f. DVA entitlement amounts (5 pages), 1 August 2002, showing a decision was made on her claim for service-connected compensation. Evaluation of adjustment disorder with mixed features, depression, and chronic anxiety, which is currently 30 percent disabling, is increased to 50 percent effective 7 June 1999. Entitlement to individual unemployability is granted effective 7 June 1999. Basic eligibility to Dependents' Educational Assistance is established from 7 June 1999. g. eBenefits printout showing 100 percent total combined disabilities. h. DVA letter, 12 July 2022, showing the applicant’s changed name may receive commissary store and exchange privileges from the Armed Forces due to being entitled to disability compensation at the 100 percent rate due to service-connected disabilities. 27. During the processing of this case a request for a sanitized copy of information from the Department of the Army Criminal Investigation Division (DACID) was submitted. A search of the Army criminal file indexes utilizing the information provided revealed no records pertaining to the applicant. Be advised that records at this center are Criminal Investigative and Military Police Reports and are indexed by personal identifiers such as names, social security numbers, dates and places of birth and other pertinent data to enable the positive identification of individuals. 28. During the processing of this case a request to the Department of the Army Inspector General (DAIG), dated 5 April 2023, for an un-redacted copy of “all IG records pertaining to [the applicant],” for use by the ABCMR to process the individual’s application. The DAIG Records Release office searched the Army IG database—the Inspector General Action Request System—and did not locate any records responsive to the request. 29. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 30. Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 31. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the DVA, 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 DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 32. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 33. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant has applied to the ABCMR requesting a change in her disability discharge disposition from separated with severance pay to permanent retirement for physical disability. She states: “I was unable complete the remaining months of service for eligibility for retirement after 10 years due to disability. Because of sexual assault, PTSD, depression, anxiety, harassment, and lace of support, I was prevented from continuance with my career.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. Her DD 214 for the period of Service under consideration shows the former USAR Soldier entered the regular Army on 7 April 1991 and was separated with $21,445.20 of disability severance pay on 16 April 1996 under provisions provided in paragraph 4-24b(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990). d. The applicant was referred to a medical evaluation board in late 1995 / early 1996 for “Chronic mechanical low back pain and bilateral knee pain.” A medical evaluation board (MEB) found her “Patellofemoral dysfunction, bilateral knees” and “Chronic mechanical low back pain” to fail the medical retention standards of AR 40-501, Standards of Medical Fitness. e. On 28 February 1996, the applicant agreed with the board’s findings and recommendation and her case was forwarded to a physical evaluation board (PEB) for adjudication. Her Physical Profile (DA Form 3349) dated 21 February 1996 lists these two conditions as her only profiled medical conditions. f. On 4 April 1996, the applicant’s informal PEB found her “Chronic mechanical low back pain” and “Pain, both knees, with mild subluxation of patellae bilateral” to be unfitting medical conditions for continued service. g. Using the VA Schedule for Rating Disabilities (VASRD), the PEB derived and applied a 10% disability rating for her spine condition but a 0% rating for her knee conditions, and recommended the applicant be separated with disability severance pay. On 2 May 1996, after being counseled on the board’s findings and recommendation by his PEB liaison officer, the applicant non-concurred with the PEB and demanded a formal hearing with assistance of regularly appointed counsel. She maintained that her mental health condition was unfitting and submitted an evaluation completed by a civilian provider on 3 April 1996. He had diagnosed the applicant with “Adjustment Disorder with Mixed Anxiety and Depressed Mood, Chronic.” Excerpts from this evaluation: “I'm working as a supply sergeant at the Army place. I'm acting as a warrant officer, but I don't have the rank or get the pay. I have to do everything for them; they depend on me all the time. None of my family work. I’m responsible for my mother's rent, my nieces’ clothes, everything. My oldest sister is and alcoholic and drug addict. I'm always taking care of her kids. I love children, but I wish they wouldn't depend on me all the time. Everybody in the family looks to me to take care of them ..." There were no overt signs of distress during the! interview. The claimant's facial expression was appropriate to the content of the interview topic. Eye contact during the interview was appropriately focused. Speech quantity, both spontaneously and in response to questions, was normal. Speech quality was soft ... The claimant's mood was calm. Her affect, or emotional responsiveness, was appropriate to the content of discussion. The claimant reported current feelings of mild depression. She indicated that she had experienced frequent episodes of depression in the past six months ... She has episodes of anxiety when under stress. During these episodes, she experiences palpitations, chest pain in the upper left quadrants, dizziness, faintness, paresthesias, muscle aches, and dry mouth. The claimant's thought processes were logical and coherent. content of thought was unremarkable and appropriate to the purposes of the interview. There were no indications of the presence of delusions. The claimant denied problems with common compulsions. She has not been bothered by obsessive thoughts. On the basis of this interview, the claimant did not provide any strong indications of personality features which would be considered to be pathological. Insight into her own psychological functioning and adjustment appears to be good. Judgment with regard to decisions affecting her own well-being is good.” h. On 17 June 1996, her formal PEB maintained the informal PEB’s findings and determined that her mental health condition was not unfitting for continued service. She concurred with formal PEB’s findings and recommendation on 26 June 1996. i. Though the applicant had a diagnosed mental health condition, the PEB correctly concluded it did not fail medical retention standards. Paragraph 3-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990) states: “The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.” j. The VA Schedule for Rating Disabilities (VASRD) is the document used to rate unfitting military disabilities. Paragraph B-1a and B1b of Appendix B to AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990): 1) Congress established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel. Such decisions are to be made according to Title IV of the Career Compensation Act of 1949 (Title IV is now mainly codified in chap 61 of Title 10, United States Code). 2) Percentage ratings in the VASRD represent the average loss in earning capacity resulting from these diseases and injuries. The ratings also represent the residual effects of these health impairments on civil occupations. k. For rating her knees, the PEB used VASRD diagnostic code 5003 – “Arthritis, degenerative.” The minimal rating under this code is 10% as they would have been rated for painful motion. In addition to these two major joints should having been rated as separate disabilities, the more appropriate VASRD diagnostic code which should have been applied to each knee separately was 5257 - Knee, other impairment of: Recurrent subluxation or lateral instability. Severe .......................................................... 30 Moderate ....................................................... 20 Slight ............................................................. 10 l. A 31 March 1997 VA Ratings Decision show an appropriate rating of 10% for each knee effective 12 September 1996. The same rationale was applied to each knee: “An evaluation of 10 percent is granted if the record shows painful motion or recurrent subluxation or lateral instability of the knee which is slight ... An evaluation of 10 percent compensation is granted based on the evidence of slight recurrent subluxation.” m. Had these correct ratings been applied by the PEB, the applicant would have been permanently retired for physical disability with a combined military disability rating of 30% (10% combined with 10% = 19% + 2% (bilateral factor = 10% of 19% = 1.9% which rounds to 2%) = 21% combined with 10% = 29% which rounds to 30%). n. There is no probative evidence the applicant had any additional medical condition(s) which would have failed the medical retention standards of chapter 3, AR 40-501 and thus been subject to a finding of unfitness for continued service and compensable prior to his discharge. Furthermore, there is no evidence an additional medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge. o. It is the opinion of the ARBA Medical Advisor the applicant should be permanently retired for physical disability effective 17 April 1996 with a combined military disability rating of 30%. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advisory official finding the applicant should be permanently retired for physical disability effective 11 September 1996 with a combined military disability rating of 30%. Additionally, the Board determined there is no probative evidence the applicant had any additional medical condition(s) which would have failed the medical retention standards and thus been subject to a finding of unfitness for continued service and compensable prior to his discharge. Furthermore, there is no evidence an additional medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge. Based on the advising official opine, the Board granted relief. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by directing the United States Physical Disability Agency (USPDA) to correct applicant’s DD Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 17 June 1996 and related separation documents to show: a. The rating for the applicant’s unfitting bilateral knee conditions as: VASRD 5257 – Left Knee, other impairment of: Recurrent subluxation or lateral instability. An evaluation of 10 percent compensation is granted based on the evidence of slight recurrent subluxation. (MEBD Dx 1) VASRD 5257 – Right Knee, other impairment of: Recurrent subluxation or lateral instability. An evaluation of 10 percent compensation is granted based on the evidence of slight recurrent subluxation. (MEBD Dx 1) b. The applicant was retired for physical disability with a combined military disability rating of 30% (10% combined with 10% = 19% + 2% (bilateral factor = 10% of 19% = 1.9% which rounds to 2%) = 21% combined with 10% = 29% which rounds to 30%). I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system 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 a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (MOS) Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. c. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 5. 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. 6. Title 38 U.S. Code 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. 7. Title 38 U.S. Code 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. 8. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 9. 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; sexual harassment. Boards were directed 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. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 10. 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 11. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010125 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1