RESOURCES

- SECURITY CLEARANCES & UNFAVORABLE ADMINISTRATIVE ACTIONS, AR 380-67 September 29 2014, 0 Comments

Chapter 8

Unfavorable Administrative Actions

Section I

Requirements

8–1. General

For purposes of this regulation, an unfavorable administrative action includes any adverse action which is taken as a result of a personnel security determination, as defined in the terms section, and any unfavorable personnel security determination, as defined in the terms section. This chapter is intended only to provide guidance for the internal operation of the DOD and is not intended to, does not, and may not be relied upon, to create or enlarge the jurisdiction or review authority of any court or administrative tribunal, including the Merit Systems Protection Board.

8–2. Referral for action

Whenever derogatory information relating to the criteria and policy set forth in paragraph 2–4 and appendix I of this regulation is developed or otherwise becomes available to any DOD element, it shall be referred by the most expeditious means to the commander or the security officer of the organization to which the individual is assigned for duty. The CDR or security officer of the organization to which the subject of the information is assigned shall review the information in terms of its security significance and completeness. If further information is needed to confirm or disprove the allegations, additional investigation should be requested. The commander of the duty organization shall ensure that the parent component of the individual concerned is informed promptly concerning (1) the derogatory information developed and (2) any actions taken or anticipated with respect thereto by forwarding DA Form 5248–R

(Report of Unfavorable Information for Security Determination) to the CDR, CCF (PCCF–M). However, referral of derogatory information to the commander or security officer shall in no way affect or limit the responsibility of the central adjudication facility to continue to process the individual for denial or revocation of clearance or access to classified information, in accordance with paragraph 8–6, below, if such action is warranted and supportable by the criteria and policy contained in paragraph 2–4 and appendix I. No unfavorable administrative action as defined in the terms section may be taken by the organization to which the individual is assigned for duty without affording the person the full range of protections contained in paragraph 8–6, below, or, in the case of SCI, Annex B, DCID 1/14.

  1. The Director, DIS, shall establish appropriate alternative means whereby information with potentially serious security significance can be reported other than through DOD command or industrial organization channels. Such access shall include utilization of the DOD Inspector General “hotline” to receive such reports for appropriate follow up by DIS. DOD components and industry will assist DIS in publicizing the availability of appropriate reporting channels.

Additionally, DOD components will augment the system when and where necessary. Heads of DOD components will be notified immediately to take action, if appropriate.

(1) When the commander learns of credible derogatory information on a member of their command that falls within the scope of paragraph 2–4, the commander will immediately forward DA Form 5248–R to the CDR, CCF.

(2) DA Form 5248–R will be submitted in a timely manner. At a minimum, initial reports will indicate the details of the credible derogatory information and actions being taken by the commander or appropriate authorities (for example, conducting an inquiry or investigation) to resolve the incident. Followup reports will be submitted at 90-day intervals if the commander has not taken final action or, for example, the subject is still

pending action by civil court. At the conclusion of the command action, a final report will be forwarded to CCF indicating the action taken by the commander. The final report must contain results of any local inquiry, investigation, or board action and recommendation of the command concerning restoration or revocation of the person’s security clearance, if appropriate.

(3) Commanders will not delay any contemplated personnel action while awaiting final action by CCF. The personnel action should proceed, with CCF being informed of the final action by submission of DA Form 5248–R through established channels.

(4) If the personnel file does not indicate the existence of a security clearance, commanders must still report information that falls within the scope of paragraph 2–4, since the person might later require a clearance. Only a final report is required on personnel who do not have a security clearance.

(5) The SSOs are charged with protecting SCI. If an SSO learns of any derogatory information falling within the scope of paragraph 2–4 concerning any person under the SSO’s security cognizance, the SSO will immediately inform the commander. The failure of a commander to forward a DA Form 5248–R to CCF, when derogatory information has been developed on SCI indoctrinated individuals, should be brought to the attention of the individual’s security manager and the senior intelligence officer.

8–3. Suspension

The commander or head of the organization shall determine whether, on the basis of all the facts available upon receipt of the initial derogatory information, it is in the interests of national security to continue subject’s security status unchanged or to take interim action to suspend subject’s access to classified information or assignment to sensitive duties (or other duties requiring a trustworthiness determination), if information exists which raises serious questions as to the individual’s ability or intent to protect classified information, until a final determination is made by the appropriate authority designated in appendix F. Every effort shall be made to resolve a suspension action as expeditiously as possible.

1. When a commander learns of significant derogatory information falling within the scope of paragraph 2–4, in addition to the reporting requirements of 8–2a, above, the commander must decide whether or not to suspend the individual’s access to classified information. The commander may wish to suspend access on an “informal” basis while gathering information to determine whether or not formal suspension is warranted. After gathering the required data, the commander may decide to restore access. If the CDR does not suspend access, CCF will review all available information and, if warranted, advise the commander to suspend access.

2.  If the commander decides on formal suspension of access, DA Form 873 will be removed from individual’s personnel file and attached to DA Form 5248–R reporting the suspension to CCF. Once this is done, the commander may not restore access until a final favorable determination by the CDR, CCF, unless ALL the following criteria are met. These following procedures apply to both collateral and SCI access:

(1) If the commander determines that the person has been cleared of all charges and that the alleged offense or disqualifying information has been disproved or found groundless, and the commander is completely convinced that no element of risk remains, the commander may restore interim access in the name of the CDR, CCF. The commander will notify CCF of this action. Access will not normally be restored in cases where factors such as dismissal of charges, acquittal because of legal technicalities, plea bargaining, or absence of a speedy

trial are involved. These factors cannot be construed as a clearing of all charges.

(2) When the commander is considering suspending or has suspended a person’s access because of a suspected or actual psychological problem, the commander may elect to retain the person in status or reinstate access if the following conditions are met:

(a) A current medical evaluation indicates the condition was a one-time occurrence.

(b) The condition has no lasting effects that would affect the person’s judgment.

(c) There is no requirement for further medical consultation relating to the condition.

(d) The examining physician recommends the person be returned to full duty status.

(e) The person exhibits no unacceptable behavior after the favorable medical evaluation.

(f) The commander firmly believes the person does not pose a risk to the security of classified information.

(3) If the commander has any doubts concerning the person’s current acceptability for access, even though

the above provisions have been met, the case will be referred to CCF. Only the CDR, CCF, may reinstate access

in cases where the person attempted suicide.

  1. The commander will ensure that the SSO is expeditiously notified of any information within the scope of paragraph 2–200 if the person is indoctrinated for SCI. This notification is especially critical if the commander suspends access.
  2. A commander who suspends access to classified information will ensure that the suspension is documented in the Field Determined Personnel Security Status data field of the Standard Installation/Division Personnel System personnel file.

8–4. Final unfavorable administrative actions

The authority to make personnel security determinations that will result in an unfavorable administrative action is limited to those authorities designated in appendix F, except that the authority to terminate the employment of a civilian employee of a military DOD Agency is vested solely in the head of the DOD component concerned and in such other statutory official as may be designated. Action to terminate civilian employees of the Office of the Secretary of Defense and DOD components, on the basis of criteria listed in paragraphs 2–4, a through f, shall be coordinated with the DUSD(P) prior to final action by the head of the DOD component. DOD civilian employees or members of the Armed Forces shall not be removed from employment or separated from the Service under provisions of this regulation if removal or separation can be effected under OPM regulations or administrative (nonsecurity) regulations of the military departments. However, actions contemplated in this regard shall in no way affect or limit the

responsibility of the central adjudication facility to continue to process the individual for denial or revocation of a security clearance, or access to classified information on or assignment to a sensitive position if warranted and supportable by the criteria and standards contained in this regulation.

Section II

Procedures

8–5. General

No final personnel security determination shall be made on a member of the Armed Forces, an employee of the DOD, a consultant to the DOD, or any other person affiliated with the DOD without granting the individual concerned the procedural benefits set forth in 8–6, below, when such determination results in an unfavorable administrative action (see para 8–1). As an exception, Red Cross/united service organizations employees shall be afforded the procedures

prescribed by DODD 5210.25 (AR 380–49).

8–6. Unfavorable administrative action procedures

Except as provided for below, no unfavorable administrative action shall be taken under the authority of this regulation unless the person concerned has been given:

  1. A written statement of the reasons why the unfavorable administrative action is being taken. The statement shall be as comprehensive and detailed as the protection of sources afforded confidentiality under the provisions of the Privacy Act of 1974 (5 USC 552a) and national security permit. Prior to issuing a statement of reasons to a civilian employee for suspension or removal action, the issuing authority must comply with the provisions of Federal Personnel Manual, chapter 732, subchapter 1, paragraph 1–6b. The signature authority must be as provided for in paragraphs6–101b(1)(b) and 6–101b (2)(b).

(1) The CDR, CCF, is the DA authority for denial and/or revocation of security clearances and/or SCI access eligibility. The CDR, CCF, may delegate this authority to those individuals outlined in paragraph 6–2b.

(2) When CCF receives credible derogatory information and denial or revocation of a security clearance and/or SCI access eligibility is considered appropriate, CCF will forward a letter of intent through the command security manager to the individual. This LOI will outline the derogatory information and explain the proposed action. It will offer the person a chance to reply in writing with an explanation, rebuttal, or mitigation for the incidents.

(3) The LOI will direct suspension of access to classified information. If the LOI addresses SCI access only, access to collateral information may continue.

(4) If the person needs access to classified information in order to prepare a response to the LOI, CCF may authorize limited access for (cont.)


- RESERVE COMPONENT MEDICAL CARE AND INCAPCITATION PAY FOR LINE OF DUTY INVESTIGATIONS September 15 2014, 0 Comments

SUBJECT: Reserve Component Medical Care and Incapacitation Pay for Line of Duty

Conditions

References: (a) DoD Directive 1241.1, "Reserve Component Incapacitation Benefits,"

December 3, 1992 (hereby canceled)

(b) Sections 1074, 1074a, 12322 and 12301(h) of title 10, United States Code

(c) Sections 204(g), 204(h) and 206 of title 37, United States Code

(d) DoD 7000.14-R, Volume 7A, "DoD Financial Management Regulation, Military

Pay Policy and Procedures-Active Duty and Reserve Pay," August 2002

(e) through (g), see enclosure 1

  1. REISSUANCE AND PURPOSE

This Directive:

1.1. Reissues reference (a) to update policies and assign responsibilities under references

(b), (c), and (d), to authorize medical and dental care for members of the Reserve components

who incur or aggravate an injury, illness, or disease in the line of duty, and provide pay and

allowances to those members while being treated for or recovering from a service-connected

injury, illness, or disease, or who demonstrate a loss of earned income as a result of an injury,

illness, or disease incurred or aggravated in the line of duty.

1.2. Establishes policies for ordering a member to active duty or continuing a member on

active duty, with the consent of the member, to receive authorized medical care, to be medically

evaluated for disability or other purposes, or to complete a required Department of Defense

(DoD) healthcare study, which may include associated medical evaluation of the member.

1.3. Establishes policies for ordering a Reserve component member to active duty or

continuing the member on active duty while being treated for (or recovering from) an injury,

illness, or disease incurred or aggravated in the line of duty.

DoDD 1241.01, February 28, 2004

2

1.4. Authorizes the issuance of DoD Instruction 1241.2 (reference (e)), to prescribe

procedures for the management of the Reserve component member who incurs or aggravates an

injury, illness, or disease in the line of duty.

  1. APPLICABILITY

2.1. This Directive applies to the Office of the Secretary of Defense, the Military

Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Inspector

General of the Department of Defense, the Defense Agencies, the DoD Field Activities and all

other organizational entities in the Department of Defense (hereafter referred to collectively as

"the DoD Components").

2.2. The Coast Guard when it is not operating as a Military Service in the Navy by

agreement with the Department of Homeland Security.

  1. DEFINITIONS

3.1. Incapacitation. Physical disability due to injury, illness, or disease that prevents the

performance of military duties as determined by the Secretary concerned, or which prevents the

member from returning to the civilian occupation in which the member was engaged at the time

of the injury, illness, or disease.

3.2. Line of Duty. A finding after all available information has been reviewed that

determines an injury, illness, or disease was incurred or aggravated as a result of military duty

not due to gross negligence or misconduct of the member. This includes a Reserve component

member on inactive duty training, funeral honors duty, traveling directly to or from such duty or

training, or while remaining overnight, immediately before the commencement of or between

successive periods of such duty.

3.3. Military Duties as Determined by the Secretary Concerned. The duties of a Service

member's office and grade, and not necessarily the specialty or skill qualification held by the

member prior to incurring or aggravating an injury, illness, or disease in the line of duty.

3.4. Secretary Concerned. The Secretary of the Army regarding matters concerning the

Army; the Secretary of the Navy regarding matters concerning the Navy, the Marine Corps, and

the Coast Guard when it is operating as a Service in the Department of the Navy; the Secretary of

the Air Force regarding matters concerning the Air Force; and the Secretary of Homeland

Security regarding matters concerning the Coast Guard when it is not operating as a Service in

the Department of the Navy.

DoDD 1241.01, February 28, 2004

3

  1. POLICY

It is DoD policy that:

4.1. A Reserve component member on active duty for a period of 30 days or less; on

inactive duty training, funeral honors duty, traveling directly to or from such duty or training, or

while remaining overnight, immediately before the commencement of or between successive

periods of such duty is entitled to medical and dental treatment for injuries, illnesses, or diseases

incurred or aggravated in the line of duty not as a result of gross negligence or misconduct of the

member.

4.2. A Reserve component member on active duty for a period of 30 days or less may be

continued on active duty while the member is being treated for, or recovering from, an injury,

illness, or disease incurred or aggravated in the line of duty.

4.3. The Secretary of the Military Department may order a Reserve component member to

active duty, with the consent of the member, to receive authorized medical care, be medically

evaluated for disability or other medical purposes, or complete a required DoD healthcare study,

which may include an associated medical evaluation of the member.

4.4. Reserve component members who have been continued on active duty for medical

reasons for more than 30 days are entitled to medical and dental care on the same basis as a

member of the regular component.

4.5. The Military Departments shall authorize pay and allowances, to the extent permitted

by reference (c), for a Reserve component member who is not medically qualified to perform

military duties, as determined by the Secretary concerned, because of an injury, illness, or

disease incurred or aggravated in the line of duty, or to provide pay and allowances to a member

who is fit to perform military duties, but experiences a loss of earned income because of an

injury, illness, or disease incurred or aggravated in the line of duty. This is commonly referred to

as incapacitation pay.

4.6. Where applicable, a line of duty determination approved by the Service component

designated authority shall serve as basis for eligibility and continuation of medical and dental

care and incapacitation benefits.

4.7. Medical and dental care authorized under this Directive shall be provided until the

member is fit for duty, or the condition cannot be materially improved with continued treatment

and the member has received a final disposition under the Disability Evaluation System, as

prescribed in DoD Directive 1332.18 and DoD Instruction 1332.38 (references (f) and (g)).

DoDD 1241.01, February 28, 2004

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  1. RESPONSIBILITIES

5.1. The Assistant Secretary of Defense (Reserve Affairs), under the Under Secretary of

Defense for Personnel and Readiness, and in coordination with the Deputy Under Secretary of

Defense (Military Personnel Policy) and the Assistant Secretary of Defense (Health Affairs),

shall be responsible for Reserve incapacitation system management policy and is authorized to

issue instructions implementing the Directive.

5.2. The Secretaries of the Military Departments shall:

5.2.1. Establish funding policy and procedures for pay and allowances authorized

under reference (c), and DoD 7000.14-R (reference (d)) for members authorized such pay during

a period of incapacitation.

5.2.2. Develop a system to track Reserve component members who are incapacitated.

5.2.3. Develop a plan to manage Reserve component members being treated in

medical treatment facilities or authorized treatment in civilian treatment facilities to ensure the

member receives the proper treatment, evaluation, and referral services in a timely and efficient

manner.

5.2.4. Review each case in which the member is projected to remain incapacitated for

more than 6 months to determine if it is in the interest of fairness and equity to continue benefits

paid under reference (c) (if applicable), and to determine if the case should be referred to the

Disability Evaluation System. Such a review shall be made every 6 months.

  1. EFFECTIVE DATE

This Directive is effective immediately.

Enclosures - 1

E1. References, continued

DoDD 1241.01, February 28, 2004


- ADMINISTRATIVE REVIEW AND APPELLATE PROCEDURES FOR ARMY PHYISCAL EVALUATION BOARD AND DISABILITY CLAIMS June 17 2014, 0 Comments

Once the Army Formal Physical Evaluation Board Has Occurred (AR 635-40):

 

(2) The PEB may change, modify, or correct its findings and recommendations at any time before the record of

proceedings is delivered to the CG, USAPDA or commander, USAHRC. When such changes are made in previously

announced findings or recommendations, the PEB will inform the Soldier (Soldier’s next-of-kin, counsel, or legal

guardian), in writing, of the proposed change. The PEB will afford the Soldier the opportunity to accept or rebut the

proposed change.

(3) The findings and recommendations of the formal PEB are recorded on DA Form 199–1. When the Soldier

personally appears before the board, the DA Form 199–1 will be prepared immediately following the conclusion of the hearing and a copy provided to the Soldier and his or her counsel or representative. The Soldier will be afforded the opportunity to make an election at this time but may choose to take the full time period for reaching a decision.

S.  Soldier's Election. DA Form 199–1, section X, records the Soldier’s election options to formal findings and recommendations.

  • (1) The DA Form 199–1 and the letter of rebuttal must be received at the PEB within 10 days from the Soldier’s

    receipt of the formal findings unless the president of the PEB approves a request for an extension of time. A request

    for an extension must be received within 10 days of the Soldier’s receipt of the DA Form 199–1. If the request for

    extension is denied, the original time frame remains applicable. A copy of the PEB’s decision on the request for

    extension will be sent to the Soldier’s counsel.

    (2) If the Soldier’s statement of election or a request for an extension of time is not received within the required

    time, the PEB will deem that the Soldier has waived the right to an election. The proceedings will be forwarded to

    USAPDA for final disposition. The forwarding memorandum will document the circumstances resulting in the waiver of election. The PEB will forward a copy of the memorandum to the Soldier through the PEBLO.

    (3) A Soldier who fails to make an election or to submit a statement of rebuttal to formal proceedings within the

    allotted time if he or she is in disagreement with the findings and recommendations, will forfeit the opportunity for

    USAPDA review of his or her case (see para 4–21t, below).

     

    Letters of rebuttal to the findings and recommendation of formal proceedings, usually required within ten days.

      Formal proceedings when the Soldier nonconcurs with the PEB findings and recommendations, submits a statement of rebuttal within the required time frame, and consideration of the rebuttal by the PEB does not result in a change to its findings and recommendation.

     

    1. The review will be confined to the case records and proceedings and related evidence. The

    review will ensure that the following criteria have been satisfied.

    (1) The Soldier received a full and fair hearing.

    (2) The proceedings of the MEB and the PEB were conducted according to governing regulations.

    (3) The findings and recommendations of the MEB and PEB were just, equitable, consistent with the facts, and in

    keeping with the provisions of law and regulations.

    (4) Due consideration was given the facts and requests contained in any rebuttal to the PEB findings and recommendations submitted by, or for, the Soldier being evaluated.

    (5) Records of the case are accurate and complete.

    1. Based upon review of the PEB proceedings, USAPDA may take the following actions:

    (1) Concur with the findings and recommendations of the PEB or make minor changes or corrections that do not

    affect the recommended disposition of the Soldier or lower the combined percentage rating.

    (2) Return the case to the PEB for reconsideration, clarification, further investigation, a formal hearing, or other

    action when the case records show such action is in the best interests of the Soldier or the Army. A detailed explanation for the reasons for return of the case will be provided to the PEB.

    (3) Issue revised findings providing for a change in disposition of the Soldier or change in the Soldier’s disability

    (4) Refer the case to the APDAB.

    1. USAPDA, will take the following actions when modifying PEB findings and recommendations.

    (1) Furnish the Soldier (next-of-kin or legal guardian) a copy of the revision by certified mail, return receipt

    PEBLO and to the Soldier’s counsel.

    (2) Advise the Soldier (next-of-kin or legal guardian) that his or her election or rebuttal to the revision must be

    received by USAPDA within 10 days from the Soldier’s receipt of the revised findings unless a request for extension is received and approved within the same time frame.

    (3) Return the case records to the PEB if the Soldier is eligible for and requests a formal hearing or if one is

    directed under the provisions of paragraph c(2), above. Processing will be according to paragraph 4–21.

    (4) Record the revised findings on DA Form 199–2 (U.S. Army Physical Disability Agency (USAPDA) Revised

    Physical Evaluation Board (PEB) Proceedings).

    (1) After considering the Soldier’s rebuttal to the revised findings, USAPDA will make one of the following

    determinations:

    (a) Accept the rebuttal; issue new findings and recommendations according to the rebuttal; and forward the case to

    USAHRC for final action.

    (b) Concur with the original recommendations of the PEB; forward the case to USAHRC for final action.

    (c) Adhere to the revised findings and recommendations and forward the case to APDAB.

    (2) The USAPDA will inform the Soldier in writing of the results of its consideration of the rebuttal.

    The Soldier records his or her election to revised findings on DA Form

    199–2, section X. If the Soldier fails to submit an election within the allotted time, USAPDA will deem that the

    Soldier has waived his or her right to file a rebuttal and take final action on the case.

    (1) The proceedings of general and MC officers found physically unfit will be forwarded to the ASD (HA) for

    review prior to disposition by USAHRC. This is not required if the finding is fit.

    (2) If the case file is to be forwarded to APDAB for appeal action, USAPDA will prepare a cover letter explaining

    the reasons for referral and note that final decision is deferred to the APDAB. If the APDAB’s decision is unfit, and if the Soldier has requested COAD under chapter 6, APDAB will forward the file to the appropriate office for COAD review.

     

    1. When APDAB changes the disposition of the

    Soldier or lowers the disability rating, USAPDA will—

    (1) Notify the Soldier (or next-of-kin, counsel, or guardian) of the changes by certified mail, return receipt.

    (2) Furnish a copy of the notification to the PEB and the PEBLO of the MTF concerned.

    (3) Advise the Soldier that his or her concurrence or rebuttal to the findings by the APDAB must be received by

    USAPDA within 10 days of the receipt of the notification letter (based upon date of the certified return receipt) unless USAPDA has approved an extension of time. Failure to respond within the allotted time will result in waiver of right to file a rebuttal to the new findings.

     

    The ADRRB is a component of the ACRB. The ADRRB reviews disability percentage ratings on request of a Soldier who was retired because of physical disability.

    The ADRRB may notify or amend a fully executed retirement order of a Soldier based upon the

    following criteria:

    (1) The original order was based on fraud or mistake of law.

    (2) The Soldier was not granted a full and fair hearing when the Soldier had made timely demand for such a

     

    (3) Substantial new evidence exists which, by due diligence, could not have been presented before disposition was

    accomplished, and the evidence would have warranted a higher percentage of disability if presented before disposition.

    (1) The person concerned, legal representative, or any informed DA authority may request relief on the grounds set

    forth above.

    (2) The request for relief must be filed within 5 years from the effective date of the disposition complaint.

    (3) Request for relief is addressed to the ADRRB. No special form is required. However, the petition must state the

    reason for requesting relief and the relief desired.

    (4) If the petition is based on evidence that is not on DA records, forward the evidence as an enclosure to the petition.

    (5) The filing of a petition for relief will not affect the directed disposition unless the SA or authority acting for the

    SA so directs. If operation of the directed disposition is suspended by proper authority, the suspension does not extend the time limit within which an application for review must be submitted to a statutory board.

    (1) The ADRRB will consider all petitions submitted according to the criteria of paragraph b, above.

    (2) If the person concerned (or his or her legal representative) did not submit the petition, the ADRRB will give the

    retiree (or his or her legal representative) reasonable notice of the matter presented by the petition and the opportunity to submit a statement or other evidence in rebuttal.

    (3) The Director, ACRB may act for the SA on petitions submitted if the recommendation of the ADRRB is

    (a) Deny relief, set aside the final disposition or placement on the TDRL directed in a case and direct further

    retirement proceedings.

    (b) Direct such action as is needed to effect the relief requested or any other action thought proper.


  • - COMBAT-RELATED INJURY DETERMINATIONS MADE BY THE PEB; AR 535-40 June 17 2014, 0 Comments

    Army Regulation 635-40, para. 4-19(j) Armed conflict—instrumentality of war. 

     

    Certain advantages accrue to those who are retired due to disability and later return to work for the Federal Government when it is determined that the disability for which retired was incurred under specific circumstances. These advantages concern preference eligible status within the Civil Service system (Title 5, United States Code, Section 3501, (5 USC 3501)).

    (1) The disability resulted from injury or disease received in LD as a direct result of armed conflict and which itself —a).

    The disability was incurred while the Soldier was engaged in armed conflict, or in an operation or incident involving armed conflict or the likelihood of armed conflict; while the Soldier was interned as a prisoner of war or detained against his will in the custody of a hostile or belligerent force; or while the Soldier was escaping or attempting to escape from such prisoner of war or detained status.

    (b)  A direct causal relationship exists between the armed conflict or the incident or operations, and the disability.

    (2) The disability is unfitting, was caused by an instrumentality of war, and was incurred in LD during a period of

    war as defined by law. The periods of war as defined in 38 USC 101 and 301 are shown below: (The statute does not

    include the action in Grenada).


    - AR 635-40 CHAPTER 3: POLICIES May 14 2014, 0 Comments

    Chapter 3

    Policies

    3–1. Standards of unfitness because of physical disability

    The mere presences of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.

     

    a.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in AR 40–501, chapter 3. These standards include guidelines for applying them to fitness decisions in individual cases. These guidelines are used to refer Soldiers to a MEB. The major objective of these standards is to achieve uniform disposition of cases arising under the law. These retention standards and guidelines should not be interpreted to mean that possessing one or more of the listed conditions or physical defects signifies automatic disability retirement or separation from the Army. The fact that the Soldier has one or more defects sufficient to require referral for evaluation, or that these defects may be unfitting for Soldiers in a different office, grade, rank, or rating, does not justify a decision of physical unfitness.

    b.  The overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation must be considered. The effect will be considered both from the standpoint of how the disabilities affect the Soldier’s performance and the requirements imposed on the Army to maintain and protect him or her during future duty assignments. A Soldier may be unfit because of physical disability caused by a single impairment or physical disabilities resulting from the overall effect of two or more impairments even though each of them, alone, would not cause unfitness.

    c.  All relevant evidence must be considered in evaluating the fitness of a Soldier. Findings with respect to fitness or unfitness for military service will be made on the basis of the preponderance of the evidence. Thus, if the preponderance of evidence indicates unfitness, a finding to that effect will be made. For example, when a referral for physical evaluation immediately follows acute, grave illness or injury, the medical evaluation may have the greater weight. This is particularly true if medical evidence establishes the fact that continued service would be harmful to the Soldier’s health or would prejudice the best interests of the Army. A Soldier may be referred for physical evaluation under other circumstances. If so, evaluations of the performance of duty by supervisors (letters, efficiency reports, or personal testimony) may provide better evidence than a clinical estimate by the Soldier’s physician describing the physical ability to perform the duties of the office, grade, rank, or rating. Thus, if the evidence establishes the fact that the Soldier adequately performed the normal duties of his or her office, grade, rank, or rating until the time of referral for physical evaluation, the Soldier might be considered fit for duty. This is true even though medical evidence indicates the Soldier’s physical ability to perform such duties may be questionable.

     However, inadequate duty performance should not be considered as evidence of physical unfitness unless a cause and effect relationship exists between the inadequate duty performance and the presence of physical disabilities.

    a.  Initial enlistment, induction, or commissioning physical standards are not relevant to deciding unfitness for continued military service. Once a Soldier has been enlisted, inducted, or commissioned, the fact that the Soldier may later fall below initial entry physical standards does not, in itself, authorize separation or retirement unless it is also established that the Soldier is unfit because of physical disability as described above. Likewise, a lack of special skills in demand, inability to meet physical standards for specialized duty such as flying, or transfer between components or branches within the Army, does not, in itself, establish eligibility for disability separation or retirement. Although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (world-wide deployability) will not serve as the sole basis for a finding of unfitness

    b.  Prior-service medical conditions are to be considered according to the following standards and limitations.

    (1) Despite any other provisions of this regulation, after a Soldier has been enlisted, inducted, and appointed or commissioned, the Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier’s acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service.

    (2) Nowithstanding the above, when a Soldier enters the military with a waiver for a medical condition or physical defect, and the condition represents a decided medical risk which would probably prejudice the best interests of the Government were the Soldier to remain in military service, separation without benefits may be appropriate, if initiated within 6 months of initial entry on active duty. Entry physical standards will be used in separating individuals with preexisting medical conditions. Such cases will be referred to a PEB to determine if the pre-existing condition has been service-aggravated.

    3–2. Presumptions

    The following presumptions will apply to physical disability evaluation:

    a.

    (1) A Soldier was in sound physical and mental condition upon entering active service except for physical disabilities noted and recorded at the time of entry.

    (2) Any disease or injury discovered after a Soldier entered active service, with the exception of congenital and hereditary conditions, was not due to the Soldier’s intentional misconduct or willful neglect and was incurred in line of duty (LD).

    (3) If the foregoing presumptions are overcome by a preponderance of the evidence, any additional disability or death resulting from the preexisting injury or disease was caused by military service aggravation. (Only specific findings of “natural progression” of the preexisting disease or injury, based upon well-established medical principles are enough to overcome the presumption of military service aggravation.)

    (4) Acute infections and sudden developments occurring while the Soldier is in military service will be regarded as service-incurred or service-aggravated. Acute infections are those such as pneumonia, active rheumatic fever (even though recurrent), acute pleurisy, or acute ear disease. Sudden developments are those such as hemoptysis, lung collapse, perforating ulcer, decompensating heart disease, coronary occlusion, thrombosis, or cerebral hemorrhage. This presumption may be overcome when a preponderance of the evidence shows that no permanent new or increased disability resulting from these causes occurred during active military service or that such conditions were the result of “natural progression” of preexisting injuries or diseases as in (3), above.

    (5) The foregoing presumptions may be overcome only by a preponderance of the evidence, which differs from personal opinion, speculation, or conjecture. When reasonable doubt exists about a Soldier’s condition, an attempt should be made to resolve the doubt by further clinical investigation and observation and by consideration of any other evidence that may apply. In the absence of such proof by the preponderance of the evidence, reasonable doubt should be resolved in favor of the Soldier.

    b.

    (1) Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

    (2) When a Soldier is being processed for separation or retirement for reasons other than physical disability,continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. An enlisted Soldier whose reenlistment has been approved before the end of his or her current enlistment, is not processing for separation; therefore, this rule does not apply. The presumption of fitness may be overcome if the evidence establishes that—

    (a) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or

    rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.

    (b) An acute, grave illness or injury or other significant deterioration of the Soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical

    disability and which rendered the Soldier unfit for further duty.

    (3) A Soldier previously found unfit but approved for continuation on active duty (COAD) is evaluated according to chapter 6.

    3–3. Conditions existing before active military service

    a.  According to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.

    (1) Examples of these conditions are as follows:

    (a) Scars.

    (b) Fibrosis of the lungs.

    (c) Atrophy following disease of the central or peripheral nervous system.

    (d) Healed fractures.

    (e) Absent, displaced, or resected organs.

    (f) Supernumerary parts.

    (g) Congenital malformations and hereditary conditions.

    (h) Similar conditions in which medical authorities are in such consistent and universal agreement as to their cause

    and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service.

    (2) Likewise, manifestation of lesions or symptoms of chronic disease from date of entry on active military service

    (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof

    that the disease existed prior to entrance into active military service.

    (3) Manifestations of communicable disease within less than the minimum incubation period after entry on active

    service will be accepted as proof of inception prior to military service.

     

    a.  Standard in-service medical and surgical treatment reducing the effect of the disease or other conditions incurred prior to entry into military service does not constitute service aggravation unless the treatment was required to relieve disability that had been aggravated by military service.

    b.  Unexpected adverse effects, over and above known hazards, directly attributable to treatment, anesthetic, or operation performed or administered for a disease or medical condition existing before entry on active duty, may be considered service aggravation.

    c.  For separation guidance on non-service aggravated existed prior to service (EPTS) conditions when a Soldier requests waiver of referral to a PEB, see chapter 5.

    3–4. Line of duty decisions

     

    a.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LD 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 (IDT).

    (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.

    b.  LD decisions are reached according to policies and procedures prescribed in AR 600–8–4. Copies of LD decision,DA Form 2173 (Statement of Medical Examination and Duty Status), or DD Form 261 (Report of Investigation—Line of Duty and Misconduct Status) must be included in the official records of the case. When a board or council has substantial evidence, however, showing that a prior decision may be incorrect for any reason, they must include such evidence in the case record and request U.S. Army Human Resources Command (AHRC–PDC–P), 1600 Spearhead Division Avenue, Fort Knox, KY 40122–5208 to review the LD determination before final disposition of disability processing at Headquarters, Department of the Army (HQDA) level (see para 4–19g).

    c.  In certain categories of activities, the deputy commander, PEB president, or alternate president have the authority to make findings of “in line of duty, not due to own misconduct” when no LD investigation has been completed and specific criteria have been met (para 4–19g).

    3–5. Use of the Department of Veterans Affairs schedule for Rating Disabilities

    a.  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. Under the provisions of 10 USC 61 these ratings are assigned from the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD).

    b.  Special guidance concerning Army use of the VASRD, as well as modifications and exceptions to it as prescribed by DODD 1332.18, are set forth in appendix B, of this regulation.

    c.  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.

    d.  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. Any non-ratable defects or will be listed in item 8 of DA Form 199 (Physical Evaluation Board Proceedings), but will be annotated as

    non-ratable.

    3–6. Length of hospitalization

    Providing definitive medical care to active duty Soldiers requiring prolonged hospitalization who are unlikely to return to active duty is not within the DA mission. The time at which a Soldier should be processed for disability retirement or separation must be decided on an individual basis. The interest of both the Army and the Soldier must be considered. A Soldier may not be retained or separated solely to increase retirement or separation benefits. Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement.

    3–7. Retaining Soldiers on active duty after scheduled nondisability retirement or discharge date

    A Soldier whose normal scheduled date of nondisability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, be retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.

    a.  Officers and warrant officers on extended active duty may be retained on active duty according to the provision of AR 600–8–24, chapter 1.

    b.  Enlisted Soldiers on extended active duty may be retained on active duty according to the provisions of AR 635–200, chapter 1.

    c.  Soldiers in the reserve components (RC) (other than active guard reserve (AGR)) may be retained according to the provisions of AR 135–381.

    d.  Reserve component Soldiers serving on AGR status will be retained on active duty as prescribed in AR 635–200.

    3–8. Counseling provided to Soldier

    a.  The appointed PEBLO at the MTF is responsible for counseling Soldiers (or the next-of-kin or legal guardian in appropriate cases) concerning their rights and privileges at each step in disability evaluation, beginning with the decision of the treating physician to refer the Soldier to a MEB and until final disposition is accomplished. For this purpose, the MTF commander will name an experienced, qualified officer, noncommissioned officer (NCO), or civilian employee as the PEBLO. At least one additional qualified officer, NCO, or civilian employee will be designated as alternate PEBLO. Only personnel whose duties will not conflict with their counseling responsibilities will be selected. The MTF commander will notify the recorder of the applicable PEB, of the name and telephone number of the PEBLO and alternate PEBLO. PEBLOs will use the Disability Counseling Guide (app C) to assist them in providing thorough counseling. Counseling will be documented (see para 4–20d).

    Counseling will cover as a minimum, the following areas:

    (1) Legal rights (including the sequence of and the nature of disability processing).

    (2) Effects and recommendations of MEB and PEB findings.

    (3) Estimated disability retired or severance pay (after receipt of PEB findings and recommendations).

    (4) Probable grade upon retirement.

    (5) Potential veteran’s benefits.

    (6) Recourse to and preparation of rebuttals to PEB findings and recommendations.

    (7) Disabled Veterans Outreach Program (DVOP).

    (8) Post-retirement insurance programs and the Survivor Benefit Plan.

    b.  Counseling by the appointed legal counsel is provided when the Soldier requests a formal

    3–9. The temporary disability retired list

    a.  The TDRL is used in the nature of a “pending list”. It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.

    b.  Requirements for placement on the TDRL are the same as for permanent retirement. The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation. The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, United States Code, Section 1208, (10 USC 1208). In addition, the condition must be determined to be temporary or unstable

    c.  A Soldier who is determined to be physically fit will not be placed on the TDRL regardless of the severity of the physical defects or the fact that they might become unfitting were the Soldier to remain on active duty for a period of time.

    3–10. Continuation on active duty or continuation on active Reserve status of Soldiers determined unfit due to physical disability

    As set forth in chapter 6 of this regulation, a Soldier determined unfit due to physical disability by the PDES may be deferred from disability separation or retirement when it is determined that the Soldier can still serve effectively with proper assignment limitations. The SA, or their designee, may direct an involuntary COAD or continuation on active Reserve status (COAR) when the Soldier’s service obligation, or special skill and experience justify an involuntary continuation.

    3–11. Limitation on appearance by Soldiers

    A Soldier or his or her representative will not be permitted to appear before the informal PEB, USAPDA (during case review), the APDAB, or the ADRRB.

    3–12. Findings and recommendations of agencies reviewing disability cases

    Review and appeal activities are bound by the regulations under which adjudicative activities function. A rare and unusual case may occur to which current regulations do not apply. If so, refer the case through channels to the OSA with a recommendation for disposition.

    3–13. Special rules applicable to general and medical corps officers

    a.  General officers and medical corps (MC) officers will not be found to be unfit by reason of physical disability if they can be expected to perform satisfactorily in an assignment appropriate to their grade, qualifications, and

    b.  General officers and MC officers who are processing for retirement by reason of age or length of service may not be retired for physical disability unless the initial unfitness determination of the SA is approved by the Secretary of Defense on the recommendation of the Assistant Secretary of Defense (Health Affairs) (ASD (HA))

    c.  General officers and MC officers not processing for retirement by reason of length of service at the time of their referral into the disability system, may not be retired or separated for physical disability until a recommendation therefore by the SA is approved by the ASD (HA).

    d.  One copy of all retirement orders issued in the case of general officers retired because of physical disability will be submitted to ASD (HA).

    3–14. Factors governing time of processing

    The point in time for referral of a Soldier for disability separation or retirement is determined on an individual basis. Normally, Soldiers who are not likely to return to duty will be processed as soon as this probability is ascertained.

    a.  Separation or retirement should normally occur within 20 days of the date of the final determination of unfitness by the SA. However, Soldiers are entitled to use accrued leave in excess of that which cannot be sold back.

    b.  Soldiers having a prognosis of imminent death shall be evaluated and processed in a comparable manner and

    procedural sequence to that of all other Soldiers. No procedures will be circumvented or omitted, to include LD determination in the interest of timely processing.


    - AR 635-40 Chapter 1 and 2 May 14 2014, 0 Comments

    Chapter 1

    Introduction

    1–1. Purpose

    This regulation establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC), Chapter 61, (10 USC 61) and DODD 1332.18. It 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 or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. The objectives of this regulation are to—

    1. Maintain an effective and fit military organization with maximum use of available manpower.
    2. Provide benefits for eligible Soldiers whose military service is terminated because of a service-connected
    3. Provide prompt disability processing while ensuring that the rights and interests of the Government and the Soldier are protected.

    1–2. References

    Required and related publications and prescribed and referenced forms are listed in appendix A.

    1–3. Explanation of abbreviations and terms

    Abbreviations and special terms used in this regulation are explained in the glossary.

    1–4. Responsibilities

    Responsibilities are listed in chapter 2.

    1–5. Ineligibility for processing

    1. Title 10, United States Code, Section 1217 (10 USC 1217) excludes cadets of service academies from eligibility

    for disability benefits under 10 USC 61. However, U.S. Military Academy (USMA) cadets may be entitled to

    compensation administered by the Department of Veterans Affairs (VA). Title 38, United States Code, Section

    101(21)(D), (38 USC 101(21)(D)) includes service as a cadet at the USMA within the definition of active duty for

    purposes of entitlement to VA compensation.

    1. Reserve Officers’ Training Corps cadets are not eligible for processing under this regulation. Senior Reserve

    Officers’ Training Corps cadets may be eligible for VA disability benefits under 38 USC 101(22)(D) as explained

    above for USMA cadets.

    Chapter 2

    Responsibilities and Functions

    Section I

    Responsible Individuals

    2–1. Secretary of the Army

    The Secretary of the Army (SA) will prescribe regulations to carry out the provisions of 10 USC 61. Unless otherwise

    specified in this regulation, the SA reserves all powers, functions, and duties of the Army PDES.

    2–2. Deputy Chief of Staff, G–1

    The Deputy Chief of Staff, G–1 (DCS, G–1) has overall Army Staff responsibility for the Army PDES. Policy

    guidance will be provided by the Director of Military Personnel Management, Office of the Deputy Chief of Staff,

    G–1.

    2–3. Commander, U.S. Army Human Resources Command

    The commander, U.S. Army Human Resources Command (USAHRC) will—

    1. Operate the Army PDES under the general staff supervision of the DCS, G–1.
    2. Accomplish final administrative actions in processing physical disability cases; issue needed orders or other

    instructions for the SA, based on decisions of the Commanding General, U.S. Army Physical Disability Agency (CG,

    USAPDA) or higher authority (see chap 4 and app D).

    1. Notify the VA of all individuals being separated or retired from the Army for physical disability.
    2. Coordinate, control, and manage all Soldiers on the temporary disability retired list (TDRL).

    AR 635–40 • 8 February 2006 1

    2–4. Commanding General, U.S. Army Physical Disability Agency

    The Commanding General (CG), U.S. Army Physical Disability Agency (USAPDA), under the operational control of the commander, USAHRC, will operate the Army PDES, to include—

    1. Interpreting and implementing policies coming from higher authority.
    2. Developing the policies, procedures, and programs of the system.
    3. Coordinating with other military departments to ensure applicable laws, policies, and directives are interpreted

    same benefits as a member of another Service under similar conditions.)

    1. Commanding and managing the subordinate elements of the USAPDA.
    2. Reviewing physical evaluation board (PEB) proceedings to ensure that Soldiers are given uniform and fair

    consideration under applicable laws, policies, and directives.

    1. Making the final decision whether a Soldier is unfit because of physical disability except when such decisions are

    reserved to higher authority. Included as higher authority are the Office of the Secretary of the Army (OSA) and the

    Office of the Secretary of Defense.

    1. Determining percentage rating and disposition.

    2–5. The Surgeon General

    The Surgeon General will establish and interpret medical standards for retaining Soldiers on active duty (see AR

    40–400 and AR 40–501).

    2–6. The Judge Advocate General

    The Judge Advocate General will—

    1. Interpret laws and regulations governing the Army PDES.
    2. Train and provide sufficient legal counsel to represent Soldiers appearing before a PEB.
    3. Train Army attorneys in disability law.

    2–7. Commanding General, U.S. Army Medical Command

    The Commanding General, U.S. Army Medical Command will—

    1. Ensure that Army medical treatment facilities (MTFs) under their control fulfill their responsibilities in connection with the Army PDES as outlined in AR 40–400 and this regulation.
    2. Appoint MTFs responsible for accomplishing periodic medical evaluation for TDRL Servicemembers (chap 7).

    2–8. Commander, medical treatment facility

    The commander, MTF will—

    1. Provide a thorough and prompt evaluation when a Soldier’s medical condition becomes questionable in respect to

    physical ability to perform duty.

    1. Appoint a physical evaluation board liaison officer (PEBLO) to counsel Soldiers undergoing physical disability
    2. Ensure medical evaluation board (MEB) proceedings referred to the PEB are complete, accurate, and fully

    documented as outlined in AR 40–400, chapter 7, and chapter 4, of this regulation.

    2–9. Unit commander

    The unit commander will—

    1. Become thoroughly familiar with the purpose of the Army PDES.
    2. Ensure that any physical defects impacting on a Soldier’s performance of duty are reflected in the Soldier’s

    evaluation report.

    1. Refer a Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform

    the duties of his or her office, grade, rank, or rating.

    1. Upon request of the MTF commander, provide the information, statements, and records on Soldiers of their

    command being processed for physical disability evaluation.

    1. Ensure timely compliance with AR 600–8–4 to prevent delay in the disability processing of Soldiers under their

    Section II

    Related Boards

    2–10. Board elements

    1. The Army PDES consists of—

    (1) Medical evaluation boards (a function of the Army Medical Department).

    2 AR 635–40 • 8 February 2006/RAR 20 March 2012

    (2) Physical evaluation boards (elements of the USAPDA).

    (3) Case reviews, when applicable, by USAPDA.

    1. Certain Department of the Army (DA) boards, though not a part of the disability system, are closely related to

    disability evaluation because of their assigned function to review disability decisions upon request of the Soldier,

    former Soldier, or when otherwise required. These boards are described in paragraphs 2–11 through 2–13, below.

    2–11. Army Physical Disability Appeal Board

    The Army Physical Disability Appeal Board (APDAB) is a component of the Army Council of Review Boards

    (ACRB). APDAB was established to review disability evaluation cases forwarded by the CG, USAPDA as provided

    under the circumstances prescribed in chapter 4.

    2–12. The Army Board for Correction of Military Records

    The Army Board for Correction of Military Records (ABCMR) is a statutory board established within the OSA under the provisions of Title 10, United States Code, Section 1552, (10 USC 1552). The ABCMR provides a means for correcting an error or removing an injustice. Within 3 years of the first knowledge of an error or injustice, a Soldier, former Soldier, or individual acting on the Soldier’s behalf may submit an application to the ABCMR according to AR

    15–185 if the individual—

    1. Believes that their military records reflect an error or an injustice.
    2. Has exhausted all administrative remedies offered by existing laws and regulations.

    2–13. Army Disability Rating Review Board

    The Army Disability Rating Review Board (ADRRB) is a component of the ACRB. The ADRRB reviews disability

    percentage ratings on request of a Soldier who was retired because of physical disability (see chap 4, sec VI). Requests for review must be made within 5 years from the date of retirement.