AR 635-40 DISABILITY EVALUATION FOR RETENTION, RETIREMENT, OR SEPARATION

Army Regulation 635–40

Personnel Separations

Disability Evaluation for

Retention, Retirement, or

Separation

 

Headquarters

Department of the Army

Washington, DC

19 January 2017

UNCLASSIFIED

 

 

 SUMMARY of CHANGE

AR 635–40

Disability Evaluation for Retention, Retirement, or Separation This major revision, dated 19 January 2017—

o         Changes the title of the regulation from Physical Evaluation for Retention, Retirement, or Separation to Disability Evaluation for Retention, Retirement, or Separation (cover).

o         Designates the Deputy Chief of Staff, G–1 as the lead for the Army Disability Evaluation System (para 2–1). o   Adds policy and process for the Military Occupational Specialty Administrative Retention Review (chap 3).

o         Addresses the eligibility of Soldiers pending or undergoing Disability Evaluation System evaluation or disposition to opt for retirement under the Temporary Early Retirement Authority (para 4–4c).

o         Incorporates Army Directive 2012–22 as modified by DODI 1332.18 (paras  4–10 and 4–20).

o         Addresses final disposition of Soldiers having an unfit finding with 18 but less than 20 years active Service (para 4– 29).

o         Establishes policy for the Reserve Component non-duty related process (para 4–34).

o         Establishes policy in support of the Department of Defense mandated Expedited Disability Evaluation System (para 4–35).

o         Revises policy for physical evaluation board fitness determinations to require a finding of unfit when the Soldier’s medical condition causes the Soldier to be unavailable for worldwide deployment (para 5–4e).

o         Designates the Deputy Chief of Staff, G–1 as the disapproval authority for continuation requests from Soldiers tracked by the Army Wounded Warrior Program (para 6–4).

o         Revises policy and process to implement DODI 1332.18; DODM 1332.18, Volumes 1 through 3; and Department of Defense Memorandum, Personnel and Readiness, dated 6 January 2009 (throughout).

 

          Headquarters                                                                                                                  *Army Regulation 635–40

Department of the Army Washington, DC

          19 January 2017                                                                                                              Effective 19 February 2017

Personnel Separations

Disability Evaluation for Retention, Retirement, or Separation

and implements the revisions to the deter- higher headquarters to the policy propomination prescribed by Army Directive nent. Refer to AR 25–30 for specific guid-

                                                                                  2012–18.                                            ance.

Applicability. This regulation applies to Army internal control process. This the Regular Army, the Army National regulation contains internal control proviGuard/Army National Guard of the United sions in accordance with AR 11–2 and idenStates, and the U.S. Army Reserve, unless tifies key internal controls that must be otherwise stated. During mobilization, evaluated (see appendix B).

chapters and policies contained in this reg-

ulation may be modified by the proponent. Supplementation. Supplementation of this regulation and establishment of comProponent and exception authority. mand and local forms are prohibited with-

 The proponent of this regulation is the Dep- out prior approval from the Deputy Chief of uty Chief of Staff, G–1. The proponent has Staff, G–1 (DAPE–MP), 300 Army Penta-

         History. This publication is a major revi- the authority to approve exceptions or waivers to this regulation that are consistent               gon, Washington, DC 20310–0300.

        sion.                                                        with controlling law and regulations. The Suggested improvements. Users are

               Summary. This regulation prescribes proponent may delegate this approval au- invited to send comments or suggested im-provements on DA Form 2028 (Recom-

            Army policy and responsibilities for the thority, in writing, to a division chief within       mended Changes to Publications and Blank

        disability evaluation and disposition of Sol-          the proponent agency or its direct reporting Forms) directly to Deputy Chief of Staff,

       diers who may be unfit to perform their mil-            unit or field operating agency, in the grade G–1, (DAPE–MP), 300 Army Pentagon,

          itary duties due to physical disability. As       of colonel or the civilian equivalent. (This     Washington, DC 20310–0300.

           such, this regulation implements the re-          includes delegation to the Commanding

quirements of Title 10, United States Code, General, U.S. Army Physical Disability Distribution. This publication is availa-

             Chapter 61; DODI 1332.18, DODM           Agency). Activities may request a waiver to ble in electronic media only and is intended

1332.18 (Volumes 1 through 3), and DOD this regulation by providing justification for command level A for the Regular Army,

policy memorandums to these issuances; that includes a full analysis of the expected the Army National Guard/Army National

and Army Directive 2012–22 as modified benefits and must include formal review by Guard of the United States, and the U.S.

        by DODI 1332.18. This regulation incorpo-          the activity’s senior legal officer. All Army Reserve.

         rates the policy formerly prescribed by AR       waiver requests will be endorsed by the

          600–60 for the administrative determina-      commander or senior leader of the request-

           tion of a Soldier’s medical deployability         ing activity and forwarded through their

Contents (Listed by paragraph and page number)

Chapter 1

Introduction, page 1 Purpose • 1–1, page 1

References • 1–2, page 1

Explanation of abbreviations and terms • 1–3, page 1

Responsibilities • 1–4, page 1

Chapter 2

Responsibilities, page 1

Chief, National Guard Bureau • 2–1, page 1

Deputy Chief of Staff, G–1 • 2–2, page 1

*This regulation supersedes AR 635–40, dated 20 March 2012; AR 600–60, dated 28 February 2008; and Army Directive 2012–22, dated 9 October 2012.

                                                                                       AR 635–40 • 19 January 2017                                                                              i

UNCLASSIFIED

 


Contents—Continued

Chief, Army Reserve • 2–3, page 2

The Surgeon General • 2–4, page 2

The Judge Advocate General • 2–5, page 2

Senior and unit commanders • 2–6, page 3

Soldier • 2–7, page 4

Chapter 3

Military Occupational Specialty Administrative Retention Review, page 4 Overview • 3–1, page 4

Referral • 3–2, page 4

Ineligible for referral • 3–3, page 5

Status of Soldier during evaluation • 3–4, page 5

Outcomes of evaluation • 3–5, page 5

Chapter 4

The Disability Evaluation System, page 6

Section I

Disability Evaluation System Overview, page 6

Scope of the Disability Evaluation System • 4–1, page 6

Applicability • 4–2, page 7

Soldiers absent without leave, undergoing or pending adverse actions or involuntary administrative separation, or with prognosis of imminent death • 4–3, page 7

Waiver of Disability Evaluation System • 4–4, page 9

Additional matters concerning legal representation of Soldiers • 4–5, page 9

The Reserve Component Medical Evaluation Board Tracking Office • 4–6, page 10

Section II

Medical Evaluation Board, page 10 Policy • 4–7, page 10

Status of Soldiers undergoing disability evaluation • 4–8, page 10

Disenrollment from the Disability Evaluation System as a result of certain adverse circumstances or actions • 4– 9, page 11

Preparation for the Medical Evaluation Board • 4–10, page 11

Appointment of the Medical Evaluation Board • 4–11, page 12 Medical Board proceedings • 4–12, page 12

Soldier’s opportunities for further review • 4–13, page 14 Impartial medical review • 4–14, page 14

Medical Evaluation Board rebuttal • 4–15, page 15

Record of Medical Evaluation Board proceedings • 4–16, page 15

Training and education for the referral and Medical Evaluation Board phases • 4–17, page 15 Legacy procedures • 4–18, page 16

Section III

Physical Evaluation Board, page 16 Policy • 4–19, page 16

Appointment of physical evaluation boards • 4–20, page 16

Composition of informal and formal physical evaluation boards • 4–21, page 16 The informal physical evaluation board process • 4–22, page 17

Eligibility for a formal physical evaluation board • 4–23, page 19 Formal physical evaluation board process • 4–24, page 19

Mandatory and quality assurance review by the U.S. Army Physical Disability Agency • 4–25, page 22 Appellate review by the Army Physical Disability Appeal Board • 4–26, page 24 Final disposition by U.S. Army Physical Disability Agency • 4–27, page 25

Final decision authority for unfit findings on certain general and medical corps officers • 4–28, page 26

Final disposition for unfit Soldiers on active duty with 18 but less than 20 years active Service • 4–29, page 26

ii                                                                                             40 • 19 January 2017

Contents—Continued

Grade on retirement or separation for physical disability • 4–30, page 27 Transition benefits and pre-separation counseling • 4–31, page 27

Procedures for cases referred under the legacy process • 4–32, page 28

Temporary disability retired list • 4–33, page 28

Reserve Component non-duty related process • 4–34, page 32

Expedited Disability Evaluation System processing • 4–35, page 33

Chapter 5

Adjudicative Policy for Physical Evaluation Board and U.S. Army Physical Disability Agency Determinations, page 34

Section I

Policies for Determining Fitness and Permanence and Stability of Unfitting Conditions, page 34 Standard for unfitness due to disability • 5–1, page 34

Duties of office, grade, rank, or rating • 5–2, page 34

General criteria for making unfitness determinations • 5–3, page 34

Reasonable performance of duties • 5–4, page 34

Presumption of fitness • 5–5, page 35

Evidentiary standards for determining unfitness because of physical disability • 5–6, page 36

Standards for determining permanence and stability for permanent or temporary retirement • 5–7, page 36

Section II

Policies for Determining the Compensability of Unfitting Conditions, page 37

Applicability of 10 United States Code 1201 through 10 United States Code 1203 • 5–8, page 37

Compensable criteria under 10 United States Code 1201 through 10 United States Code 1203 • 5–9, page 37 On active duty for more than 30 days • 5–10, page 37

Presumption of sound condition for Soldiers on orders to active duty specifying a period of more than 30 days • 5– 11, page 37

Applicability of 10 United States Code 1204 through 10 United States Code 1206 • 5–12, page 38

Compensable criteria under 10 United States Code 1204 through 10 United States Code 1206 • 5–13, page 38 Impairments incurred during prior service • 5–14, page 39

10 United States Code 1207a and pre-existing conditions • 5–15, page 39

Impact of Section 1206a Title 10 United States Code on Title 10 United States Code Section 1207a • 5–16, page 39 Other matters related to pre-existing disability • 5–17, page 39 Failure to comply with prescribed treatment • 5–18, page 40

Disability resulting from non-approved elective surgery or treatment • 5–19, page 40 Temporary disability retired list determinations • 5–20, page 40 The rating of compensable disabilities • 5–21, page 41

Disability incurred during excess leave for review of court-martial proceedings • 5–22, page 41 Line of duty requirements for disability cases • 5–23, page 41

Section III

Policy for Administrative Determinations, page 42

Determinations for purposes of federal civil service employment • 5–24, page 42 Determinations for federal tax benefits • 5–25, page 43

Reserve Component Soldiers who are dual status technicians • 5–26, page 43 Determinations relating to disability severance pay • 5–27, page 43

Chapter 6

Continuation on Active Duty and Continuation on Active Reserve Status of Unfit Soldiers, page 44

General • 6–1, page 44

Duty statuses eligible for continuation on active duty and continuation on active Reserve status • 6–2, page 44 Eligibility criteria for requests to be considered (adjudicated) • 6–3, page 44


Approval and disapproval authority • 6–4, page 45

Decision criteria • 6–5, page 45

Length of continuation • 6–6, page 45

                                                                                                       40 • 19                                                                                                      iii

Contents—Continued

Termination • 6–7, page 46

Medical re-evaluation • 6–8, page 46

Disposition at end of continuation period • 6–9, page 47

Appendixes

A.      References, page 48

B.      Internal Control Evaluation, page 54

Glossary

iv                                                                                            40 • 19 January 2017


Chapter 1

Introduction

1–1.  Purpose

This regulation establishes the Army Disability Evaluation System (DES) according to the provisions of Title10, United States Code, Chapter 61 (10 USC Chapter 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—

a.    Maintain an effective and fit military organization with maximum use of available manpower.

b.    Provide benefits for eligible Soldiers whose military Service is terminated because of a service-connected disability.

c.    Provide prompt disability processing while ensuring that the rights and interests of the Government and the Soldier

are protected.

d.    Establish the Military Occupational Specialty Administrative Retention Review (MAR2) as an Army pre-DES eval-

uation process for Soldiers who require a P3 or P4 profile for a medical condition that meets the medical retention standards of AR 40–501. Dispositions include retention in primary military occupational specialty (PMOS), reclassification, and referral to the DES.

1–2.  References See appendix A.

1–3.  Explanation of abbreviations and terms See the glossary.

1–4.  Responsibilities

Responsibilities are listed in chapter 2.

Chapter 2

Responsibilities

2–1.  Chief, National Guard Bureau

The Director, Army National Guard (DARNG), on behalf of the CNGB, will ensure that eligible Soldiers of the Army National Guard of the United States (ARNGUS) are referred for evaluation by the MAR2 and DES, as applicable, in a timely manner, and in accordance with this regulation. This includes ensuring that duty-related referrals for Army National Guard (ARNG) Soldiers not in an active status are regulated through the Medical Evaluation Board Tracking Office (MEBTO).

2–2.  Deputy Chief of Staff, G–1 The DCS, G–1 will—

a.    Serve as the lead for the DES.

b.    Prescribe Army regulations to carry out the provisions of 10 USC Chapter 61, Department of Defense (DOD) policy

for the DES, and Army policy for MAR2.

c.    Establish a quality assurance process to—

(1)         Ensure policies and procedures established by DOD and this regulation are fairly and consistently implemented.

(2)         Establish procedures to ensure the accuracy and consistency of medical evaluation board (MEB) and physical evaluation board (PEB) determinations and decisions.

(3)         Establish procedures to monitor and sustain proper performance of the duties of MEBs, PEBs, and physical evaluation board liaison officers (PEBLOs).

d.    Staff and provide resources to meet DES performance goals, without reducing Soldier’s access to due process con-

sistent with DODM 1332.18, Volume 1.

e.    The Commanding General (CG), U.S. Army Human Resources Command (HRC) on behalf of the DCS, G–1 will—

(1)         Implement policy and establish procedures for the transition of Soldiers from active duty to separation or retirement for disability. The CG will ensure that eligible Soldiers of the United States Individual Ready Reserve (IRR) are referred for evaluation by MAR2 and DES, as applicable, in a timely manner, and in accordance with the provisions of this regulation.

(2)         Manage the adjudication process for Soldiers of the Active Army and U.S. Army Reserve (USAR) who are determined unfit and request to be continued on active duty (COAD) or to be continued on active Reserve (COAR).

(3)         Manage the MAR2 process for Active Army and USAR Soldiers.

f.  The CG, U.S. Army Physical Disability Agency (USAPDA) on behalf of the CG, HRC, or the DCS, G–1, as appli-

cable at the time, will—

(1)  Assist the DCS, G–1 in developing the policies, procedures, and programs of the DES.

(2)  Develop training programs, guidelines, and curricular for the MEB, PEB, and appellate review phases of the DES.

(3)  Manage and direct the PEBs.

(4)  Serve as appellate authority for formal or informal PEB proceedings, except where such appeal is reserved to higher authority.

(5)  Make the final decision for the Secretary of the Army (SECARMY) concerning a Soldier’s fitness for duty for continued service (and associated adjudicative determinations related to unfit findings), except when such decisions are reserved to higher authority.

(6)  Accomplish final administrative actions, to include authorizing to the installation transition center the Soldier’s disability retirement or separation and publishing the disability orders on Soldiers of the Reserve Component (RC) who are not on active duty.

(7)  Determine the disability percentage rating for cases adjudicated under the legacy process.

(8)  Coordinate, control, and manage all members on the temporary disability retired list (TDRL).

(9)  Publish and make available standard informational publications regarding the DES in hardcopy and electronic form to provide general and specific information on the MEB and PEB processes. These publications will include the rights and responsibilities of the Soldier while navigating through the DES. These publications will be made available at the servicing military treatment facilities (MTFs), Offices of Soldiers’ Counsel, and PEB regions.

2–3.  Chief, Army Reserve

The CAR will ensure eligible Soldiers of the USAR Ready Reserve are referred for evaluation by MAR2 and DES, as applicable, in a timely manner, and in accordance with this regulation.

2–4.  The Surgeon General TSG will—

a.    Establish, in coordination with DCS, G–1 and USAPDA, policies governing the MEB process for MTFs worldwide.

b.    Establish and interpret medical standards for Soldiers of all components.

c.    Ensure that training and credentialing requirements are formalized and standardized for the Army Medical Depart-

ment participants in the DES.

d.    The U.S. Army Medical Command (MEDCOM) on behalf of the TSG will—

(1)         Ensure all major MEDCOMs are responsible for the administration of patients receiving care in MTFs under their jurisdiction.

(2)         Ensure that Army MTFs under their control fulfill their responsibilities in connection with the DES, as outlined in this regulation.

(3)         Develop and execute agreements to support the disability process of members who receive medical care from another military department, including MTFs under the Defense Health Agency.

(4)         Establish procedures to ensure Servicemembers who are hospitalized or receiving treatment at a U.S. Department of Veterans Affairs (VA) or a non-Government facility are referred, processed, and counseled in a manner similar to their peers.

(5)         Establish monitoring procedures to ensure MTF personnel consistently use the approval authority signature date on the DA Form 3349 (Physical Profile) as the MEB referral date in the Veterans Tracking Application.

e.  The MTF commanders on behalf of the TSG will—

(1)      Provide thorough and prompt evaluations for Soldiers in the DES process.

(2)      Ensure MEB proceedings referred to the PEB are complete, accurate, and fully documented as outlined in this regulation.

2–5.  The Judge Advocate General TJAG will—

a.         Interpret laws and regulations governing the DES.

b.         In coordination with the Staff Judge Advocate (SJA), MEDCOM and the Director of the Office of Soldiers’ Counsel (OSC), MEDCOM, train and provide sufficient appointed legal personnel, specifically Soldiers’ MEB Counsel (SMEBC), Soldiers’ PEB counsel (SPEBC), and supporting paralegals to represent Soldiers in the DES who request appointed counsel.

c.         Establish standardized certification training programs and curricula for OSC personnel, SJAs, and Department of the Army (DA) Civilian attorneys within the Judge Advocate Legal Services, representing Soldiers throughout the DES process.

d.         Review requests by SJAs or DA Civilian attorneys who are not currently assigned to an OSC to represent Soldiers

within the DES. Requests will be routed through the Director of the OSC, MEDCOM and the SJA, MEDCOM, and forwarded to TJAG, Legal Assistance Policy Division (DAJA–LA). Individual certification will be based upon the counsel's training, experience, current duty position and responsibilities, and on the particular circumstances of the Soldier's DES case. TJAG, or the designee, has authority to approve individual certification for non-OSC SJAs or DA Civilian attorneys.

2–6.  Senior and unit commanders

a.  The senior commander is responsible for the successful completion of all aspects of the MEB process at their installation. They are responsible for ensuring all subordinate commanders are in compliance with the requirements and responsibilities established by this regulation and all applicable DOD and Army directives on DES. In coordination with the MTF commander and DES leaders, the senior commander is responsible for issuing and enforcing local DES policy guidance, procedures, timelines, staffing, and resourcing. To meet these responsibilities, at a minimum, the senior commander will— (1)  Be accountable for all Soldiers in the DES assigned to the installation.

(2)         Ensure that unit commanders and first sergeants receive training on all Integrated Disability Evaluation System (IDES) processes and systems, including Medical Protection System and DA Pam 220–1, electronic profile (e-Profile) (see AR 40–501), and electronic line of duty (LOD), and the Commander’s IDES Dashboard.

(3)         Establish clear local guidance regarding all procedures and standards established by this regulation.

(4)         Emphasize the importance and purpose of DA Form 7652 (Disability Evaluation System (DES) Commander’s Performance and Functional Statement) and the completion of LOD investigations in accordance with AR 600–8–4.

(5)         Create a common location for DES offices, co-locating both DOD and VA assets when possible.

(6)         Provide borrowed military manpower via Soldiers Skill Set Utilization Program to support surge requirements on the installation.

(7)         Ensure Soldiers and their families have access to the Soldier and Family Assistance Centers, Transition Centers, and any other relevant services, where available.

(8)         Ensure commanders verify that Soldiers attend all exit briefs as required to ensure smooth handoff to VA.

(9)         Ensure permanent (P) and temporary (T) medical profiles containing a numerical designator of 3 or 4 (hereafter referred to as a P3/P4 or T3/T4 profile) in one of the serial profile factors are reviewed according to Army standards of AR 40–501.

(10)      Ensure the policy of AR 135–175, AR 135–178, AR 600–8–24, AR 635–200, and this regulation is followed concerning the precedence of administrative separation or disability evaluation when administrative separation action, or action under the Uniform Code of Military Justice (UCMJ), is begun or approved before, during, or after the Soldier is identified for or referred to the DES.

b.  Unit commanders will—

(1)         Ensure medical profiles containing a P3/P4 or T3/T4 in one of the serial profile factors are reviewed according to Army standards in AR 40–501.

(2)         Ensure Soldiers attend all required medical and administrative appointments and exit briefings, and that Soldiers are in full compliance with all requirements during the DES process.

(3)         Ensure Soldiers enroll and attend all Soldier for Life – Transition Assistance Program events and meet all requirements of the Veterans Opportunity to Work Act and Career Readiness Standards.

(4)         Provide escort for non-compliant Soldiers utilizing unit funds.

(5)         Coordinate and fund transportation to enable the Soldier to report to scheduled appointments and to formal PEB (FPEB) hearings.  This does not apply to cases referred under the non-duty related process, unless the Soldier is directed to a FPEB. Ensure Soldiers traveling to a FPEB have sufficient time to arrive (more than one duty day) in advance of the scheduled hearings to confer with appointed legal counsel.

(6)         Keep the PEBLO informed of all changes in Soldier’s personal circumstances, to include command-approved leave (see para 4–7a), temporary duty orders, initiation of or pending administrative separation action or charges under the UCMJ.

(7)         Ensure all documentation required by the PEBLO is provided to include required LOD determinations.

(8)         Attend or review the DES orientation briefing with the Soldier.

(9)         Provide a non-medical assessment by completing DA Form 7652.

(10)      Ensure access to IDES.

(11)      Ensure Soldiers enrolled in the IDES are extended on active duty, if needed and upon the Soldier’s consent, to complete the DES process.

(12)      Ensure Soldiers who have completed IDES (have approved cases) start the transition process within 7 workdays and begin transition leave or permissive temporary duty, if authorized, not later than 45 days of the case being approved.

c.  If the information about a restricted report of sexual assault comes to the commander’s attention as a result of a disclosure that is required for fitness of duty or disability determination, the commander shall not report the matter to the U.S. Army Criminal Investigation Command.

2–7.  Soldier

The Soldier will—

a.    Attend all scheduled appointments.

b.    Assist with providing required personnel and administrative data and documentation.

c.    Keep PEBLO and unit informed of all changes in personal circumstances, appointment conflicts, and administrative

actions that may impact the completion of evaluation and/or transition.

d.    Enroll in the Soldier for Life – Transition Assistance Program upon referral to the DES.

e.    Begin transition processing immediately upon notification that the case has been approved with an unfit finding.

Chapter 3

Military Occupational Specialty Administrative Retention Review

3–1.  Overview

a.     This chapter implements and establishes policy for the MAR2. Soldiers must be of sufficient medical fitness to satisfactorily perform their PMOS or area of concentration (AOC), as well as those functional activities listed on the DA Form 3349, which all Soldiers must perform regardless of PMOS or AOC. (All functional activities listed on the DA Form 3349 must be marked “YES” for Soldier to be eligible for referral to a MAR2). The MAR2 is an administrative process for Soldiers who meet the medical retention standards of AR 40–501, but who nonetheless may not be able to satisfactorily perform the duties of their PMOS or AOC in a worldwide field or austere environment because of medical limitations. The MAR2 process is used to determine whether a Soldier will be retained in their PMOS or AOC or reclassified into another PMOS or AOC. Soldiers who do not meet PMOS or AOC standards and who do not qualify for reclassification will be referred into the DES.

b.     See DA Pam 635–40 for process procedures.

c.      The MAR2 review process replaces the Military Occupational Specialty Medical Retention Board process.

3–2.  Referral

a.  Subject to the exclusions listed in paragraph 3–3, referral for MAR2 is required in the following circumstances:

(1)         The Soldier is issued a DA Form 3349 with a P3/P4 in at least one of the profile serial factors for a medical condition(s) that meet the medical retention standards of AR 40–501. Any DA Form 3349 generated for a USAR Soldier in a drilling troop program unit or Active Guard Reserve (AGR) status must be validated by the U.S. Army Reserve Command’s Medical Management Center (AFRC–CIE) before their referral into MAR2.

(2)         When the MEB determines the Soldier meets medical retention standards and returns the Soldier to duty with a P3 or P4 profile.

(3)         A Soldier previously evaluated by a MAR2 that resulted in retention in their PMOS or reclassification to a new PMOS, or a Soldier who was determined fit as the final outcome of PEB adjudication, when one of the following events occurs:

(a)      The Soldier receives additional functional limitations for the condition(s) that initially generated the referral to MAR2 or processing through the DES.

(b)      The Soldier receives a P3/P4 for a new condition(s) that meet medical retention standards.

b.  Soldiers previously retained by MAR2 or the DES may be referred again to MAR2 for the same condition(s) with no change in the profile status when there is evidence that the condition(s) for which the Soldier was retained precludes the Soldier from performing their duties in a satisfactory manner. Such referral must be recommended by the first O–6 in the Soldier’s chain of command and occur no earlier than 120 days from the Soldier’s previous evaluation. The Soldier must be referred to a MTF for an updated profile if, at the time of the resubmission, the profile is older than 12 months.

RC Soldiers not on active duty are referred to their respective State or Regional Support Command Surgeon.

3–3.  Ineligible for referral

Soldiers in the following circumstances will not be referred for MAR2:

a.     The Soldier is issued a DA Form 3349 confirming the Soldier is ineligible for a MAR2 because they have a condition that does not meet medical retention standards in accordance with AR 40–501 and/or prevents the Soldier from performing all required functional activities. These Soldiers will generally be processed through the DES. If the MEB, however, determines the Soldier meets medical retention standards but requires a P3/P4 profile, the Soldier’s command will refer the Soldier to MAR2.

b.     The Soldier’s request for regular retirement, non-regular retirement, or transfer to the Retired Reserve has been ap-

proved.

c.      An officer is within 12 months of their mandatory retirement and/or removal date.

d.     An enlisted Soldier within 12 months of their retention control point (RCP) and will be retirement eligible at RCP, or an RC enlisted Soldier within 12 months of their mandatory removal date and will be eligible for a 20-year letter on that date.

e.      The Soldier is within 90 days of their expiration term of service (ETS) and does not have a remaining military service

obligation.

f.       The Soldier is being processed for administrative separation pursuant to AR 135–175, AR 135–178, AR 600–8–24,

and AR 635–200.

g.     The Soldier failed to complete initial military training, advanced individual training, or Basic Officer Leaders Course.

(1)      When the failure is due to medical reasons, the Soldier will be referred to the DES.

(2)      When the Soldier receives a P3 during training (to include for a condition for which the Soldier was granted an accessions waiver) and the condition meets medical retention standards, the Soldier will undergo MAR2 evaluation no later than six months after reporting to their first duty assignment.

h.    The Soldier is serving on active duty as a retiree recall.

i.     The officer holds general officer rank. General officers will receive a retention standards physical. If they meet med-

ical retention standards, their ability to deploy will be a command determination without referral to MAR2. If the general officer does not meet medical retention standards, the general officer will be referred to the DES under the applicable DES process (duty-related or non-duty-related) (see para 4–2).

3–4.  Status of Soldier during evaluation

From the time a Soldier receives a P3/P4 profile until the time the MAR2 process is completed (including a decision on any appeal), the Soldier—

a.    Will perform PMOS or AOC duties, to include duties in a field environment, within the limitations of the profile.

b.    Is eligible for awards and for promotion consideration, promotion selection, and promotion.

c.    Is temporarily in a nondeployable status, but the commander may permit their deployment after consulting with a

medical officer, the chain of command, and the combatant command surgeon for the proposed theater of operation. d.  Is subject to disciplinary action.

e.      Is ineligible for reassignment instructions or orders. If the Soldier has already received reassignment orders prior to initiation of the MAR2 process, the process must be completed and a final decision rendered before the Soldier proceeds on assignment.

f.       Is ineligible for reenlistment, permanent change of station, transfer within a component or transfer between compo-

nents.

g.     Is ineligible to be scheduled for or attend training for which the U.S. Army Training and Doctrine Command is the

proponent.

h.     May extend their enlistment to complete MAR2 evaluation if otherwise eligible for such extension under the provi-

sions of AR 601–280.

3–5.  Outcomes of evaluation

Evaluation by MAR2 will result in one of the following outcomes:

a.            Retention in occupation.  The Soldier meets PMOS or AOC medical requirements of DA Pam 611–21 for their grade

and skill level or has been provided a proponent waiver of these requirements.

b.            Reclassification/branch transfer.  The Soldier meets PMOS or AOC medical requirements of DA Pam 611–21 for their grade and skill level for a different PMOS or AOC and will be reclassified and/or transferred into that PMOS and/or AOC.

c.             Referral for disability evaluation.  The Soldier does not meet PMOS or AOC medical requirements and does not qualify for reclassification and/or branch transfer into a different PMOS or AOC due to the Soldier’s medical limitations (including anticipated progression of the medical condition) or because manpower requirements do not support reclassification and/or branch transfer. With referral for disability evaluation under the duty-related process, completion of the MEB and PEB phases of the DES are generally required for both Active Army and RC Soldiers. The MEB may only return the Soldier to duty when the Soldier’s medical condition allows each of the profile factors to contain a P1 or P2 in addition to finding that the Soldier meets medical retention standards. With a MAR2 referral of an RC Soldier to the medical disqualification process for non-duty related condition(s), completion of a requested or otherwise required non-duty related PEB is required unless the Soldier qualifies for and concurs with separation due to medical disqualification or transfer to the Retired Reserve.

Chapter 4

The Disability Evaluation System

Section I Disability Evaluation System Overview 4–1.  Scope of the Disability Evaluation System

a.            Public Law 110–181 defines the term, physical DES, in part, as a system or process of the DOD for evaluating the nature and extent of disabilities affecting members of the Armed Forces that is operated by the Secretaries of the military departments and is comprised of MEBs, PEBs, counseling of Soldiers, and mechanisms for the final disposition of disability evaluations by appropriate personnel. (See the notes to 10 USC 1171 for the Title XVI provisions.)

b.            A Soldier may not be discharged or released from active duty because of a disability until they have made a claim for compensation, pension, or hospitalization with the VA or have signed a statement that their right to make such a claim has been explained, or have refused to sign such a statement.

c.             The objectives of the DES 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 disability incurred in the LOD.

(3)         Provide prompt disability processing while ensuring that the rights and interests of the Government and the Soldier are protected.

d.  The DES consists of the three systems listed below and as defined in the glossary. The policies and mandated pro-

cedures for these processes are set forth in this chapter. See DA Pam 635–40 for additional procedures.

(1)      Legacy Disability Evaluation System.  Under the legacy system, for cases referred under the duty-related process, the PEB determines fitness and determines the disability rating percentages using the Veteran’s Administration Schedule for Rating Disabilities (VASRD). The legacy process also includes the RC non-duty related referral process. No disability ratings are assigned for non-duty related cases (see paragraph  4–18 and 4–32).

(2)      Integrated Disability Evaluation System.  The IDES features –

(a)         A single set of disability medical examinations that may assist the DES in identifying conditions that may render the Soldier unfit.

(b)         A single set of disability ratings provided by VA for use by both departments.  The DES applies these ratings to the conditions it determines to be unfitting and compensable.  The Soldier receives preliminary ratings for their VA compensation before the Soldier is separated or retired for disability.

(3)  Expedited Disability Evaluation System.  A voluntary process for Soldiers unfit for catastrophic injuries or diseases in which USAPDA may permanently retire the Soldier for disability without referral to the PEB based on the MTF’s medical narrative summary (NARSUM).

e.  The DES begins for a Soldier when either of the events below occurs:

(1)      The Soldier is issued a permanent profile approved in accordance with the provisions of AR 40–501 and the profile contains a numerical designator of P3/P4 in any of the serial profile factors for a condition that appears not to meet medical retention standards in accordance with AR 40–501 (see glossary). Within (but not later than) one year of diagnosis, the Soldier must be assigned a P3/P4 profile to refer the Soldier to the DES. Any DA Form 3349 generated for a USAR Soldier in a drilling Troop Program Unit or AGR status must be validated by the U.S. Army Reserve Command’s Medical Management Center before their referral into the DES.

(2)      The Soldier is referred to the DES as the outcome of MAR2 evaluation.

f.  The DES concludes for Soldiers as set forth below:

(1)         For Soldiers determined by the MEB to meet medical retention standards and MAR2 did not refer the Soldier to the DES, the DES concludes the date the MEB returned the Soldier to duty. (If referral to MEB resulted from MAR2 evaluation, referral to the PEB may be mandatory (see para 3–5).)

(2)         For Soldiers referred to the PEB and determined fit, the DES concludes as of the date of USAPDA’s memorandum approving the finding of fit.

(3)         For Soldiers referred to the DES under a Legacy Disability Evaluation System (LDES) process and determined unfit, the DES concludes on the date of the Soldier’s separation or retirement for disability.

(4)         For Soldiers referred to the DES under the IDES process and determined unfit, the DES concludes on the date of the Soldier’s notification of the VA’s benefits decision. However, the Soldier’s military status as a member of the Active Army or RC, as applicable, ends on the date of the Soldier’s disability separation or retirement.

g.            Delaying DES processing or disposition is not authorized for the purpose of increasing the length of time the Soldier remains on active duty and receiving military benefits, allowing death in an active duty status, or increasing a Soldier’s compensation for or otherwise related to disability retirement or disability separation.

h.            Information contained in a restricted report of sexual assault that is necessary for a fitness for duty or disability determination shall only be disclosed as necessary to the officials participating in the processing of the board and shall be limited to that purpose. Receipt of information from a restricted report by personnel involved in the processing of a disability case who are not individuals that can take a restricted report in accordance with DODI 6495.02 shall not cause a restricted report to be considered unrestricted. All restricted reporting information remains confidential and protected. Personnel who receive confidential information from a restricted report for the purpose of disability processing, shall be subject to the same requirements as healthcare personnel with regards to safeguarding personal information and may be subject to disciplinary action if such information is disclosed without authority.

4–2.  Applicability

a.  The DES applies to Active Army, RC Soldiers, recalled retirees, and cadets of the United States Military Academy.

(1)         The non-duty related process applies to RC Soldiers who are not on active duty and who do not meet medical retention standards because of non-duty related impairments.

(2)         RC Soldiers, who were called to active duty under the provisions of 10 USC 12301 but then released from active duty by the 30th day due to the identification of a pre-existing condition not aggravated by the current tour of active duty, and which fails retention standards, will come under the  applicable DES process based on whether the pre-existing condition was previously incurred in the LOD (duty-related process) or was a condition incurred when not in a duty status (non-duty-related process).

(3)         RC Soldiers on active duty orders specifying a period of more than 30 days will, with their consent, be kept on active duty for disability evaluation processing until final disposition, subject to the circumstances set forth in paragraph 4–2a(2).

(a)         The original orders issuing authority is responsible for coordinating with MEDCOM to generate a 12301(h) order extending the RC Soldier on active duty to complete the DES process.

(b)         The original orders issuing authority is responsible for providing the funding for the 12301(h) order and any tem-porary duty travel for DES required appointments.

b.            The legacy process (see paras  4–18 and 4–32) may be used on a case-by-case basis for any Soldier or member

eligible for IDES evaluation when circumstances exist that the IDES process may have a detrimental impact on the disability process, the Soldier, or the Army.  The Soldier or command may request the LDES in lieu of IDES process.

c.             Reserve Officers' Training Corps cadets are not eligible for processing through the DES, even if injured during train-

ing.  Cadets who are in a RC Simultaneous Membership Program are the exception, and are eligible for duty-related DES processing if injured in training.

d.            Provided the Soldier has no other conditions which are cause for MEB referral, a Soldier with one or more congenital or developmental defects not compensable under the VASRD will not be referred to the DES even when these conditions require a P3/P4 profile or interfere with duty performance.

e.             The legacy process will be used for Army Veterans referred to the DES by the Army Board for Correction of Military Records (see para 4–18).

4–3.  Soldiers absent without leave, undergoing or pending adverse actions or involuntary administrative separation, or with prognosis of imminent death

a.            Absent without leave.  A Soldier who is absent without leave is not eligible to be referred to or continue the MEB, PEB, or final disposition phase of the DES. Once the Soldier is dropped from the rolls of the Army, their case is terminated. If the Soldier returns to military control before being dropped from the rolls of the Army, the Soldier’s DES processing may resume. The NARSUM, or addendum to the NARSUM, as applicable, will reflect the status of the medical evaluation at the time the Soldier went absent without leave, and will address whether the Soldier incurred new medical conditions or aggravated medical conditions during the absent without leave period. If new or aggravated conditions exist, a formal LOD conducted in accordance with AR 600–8–4 is required.

b.            Reserve Component Soldiers with unexcused absences.  RC Soldiers who have nine or more unexcused absences from scheduled inactive duty training (IDT) during a one year period will be considered unsatisfactory participants.  They will not be referred to or continue DES processing unless the Soldier has a documented LOD medical condition which fails medical retention standards.  The condition must be the direct medical cause or a significant contributing factor to the unexcused absences.  Exceptions will be for those RC Soldiers who have clear and incontrovertible evidence in the form of a documented LOD or equivalent establishing a direct cause for their absences, as determined by military medical authorities.

c.             Action under the Uniform Code of Military Justice.  When Soldiers are under investigation or are charged with an

offense under the UCMJ that could result in a punitive discharge (dismissal, dishonorable discharge, or bad conduct discharge), they remain eligible to be referred to and complete the MEB phase of the DES. Eligibility for the PEB occurs when one of the actions listed below occurs. (The PEB or USAPDA, as applicable, will suspend adjudication or disposition when UCMJ action is initiated during the PEB or USAPDA review phases. These cases remain suspended until final UCMJ action is taken or one of the following events occurs.)

(1)  The investigation ends without charges.

(2)  The officer exercising proper court-martial jurisdiction dismisses the charges.

(3)  An officer submits a resignation for the good of the Service under the provisions of AR 600–8–24 (this includes when the resignation is in lieu of referral to a General Court-Martial).

(4)  The officer exercising proper court-martial jurisdiction refers the charge for trial by summary court-martial.

(5)  Court-martial conviction does not include confinement and discharge or Soldier completes confinement without discharge.

d.      Civilian confinement.  When Soldiers are under investigation for, or charged with, a civil criminal offense (misde-

meanor or felony) and they are incarcerated in civilian confinement, pre or post trial, or are being held pending psychiatric evaluation or treatment, they are ineligible to continue any phase of the DES. If they are present for duty (on bail), they are eligible to complete the MEB. The Soldier, to include if on bail, becomes eligible for the PEB or disability disposition when the Soldier is cleared of the offense and has a military status (continues on active duty or in an RC active status), or the command, after conviction, specifically declines in writing to separate the Soldier on the basis of conviction by civil court (see AR 135–175, AR 135–178, AR 600–8–24, and AR 635–200).

e.      Soldiers with military suspended sentences.  Soldiers may not be referred for, or continue in, disability processing if under military sentence of dismissal or punitive discharge unless the sentence is suspended. A copy of the military order suspending the sentence must be included with the MEB packet forwarded to the PEB. If, after forwarding the case to the PEB, the command takes action to vacate the suspension, the PEBLO must notify the PEB. Disability processing may resume if the commander decides not to vacate the suspension. The Soldier may not be discharged through the DES process until the period of suspension has ended and the punitive discharge or dismissal has been disapproved.

f.       Enlisted Soldiers pending administrative separation.

(1)         Enlisted Soldiers who are approved for discharge in lieu of trial by court-martial are ineligible for referral to the MEB and PEB phases of the DES (see AR 635–200). If the Soldier is in the DES process, their DES case will be terminated, and the Soldier is discharged in lieu of trial by court-martial.

(2)         Soldiers under processing for an administrative separation for fraudulent enlistment or misconduct remain eligible to be referred to the MEB. The Soldier’s commander must notify the Soldier’s PEBLO in writing that administrative separation action has been initiated. The Soldier’s completed MEB must be referred to the Soldier’s General Court-martial Convening Authority (GCMCA) in accordance with AR 635–200 to determine whether the Soldier will be referred to the PEB. Approval and suspension of an AR 635–200 separation action is not authorized when the Soldier is pending both an AR 635–200 and AR 635–40 action. The GCMCA must decide which action to pursue (as described in AR 635–200). Soldiers continue to be eligible for these administrative separation actions up until the day of their separation or retirement for disability even though their PEB findings have been previously completed and approved by USAPDA for the SECARMY.  In no case will a Soldier, being processed for an administrative separation for fraudulent enlistment or misconduct be discharged through the DES process without the approval of the GCMCA.

(3)         For administrative separation actions other than those addressed in paragraphs  4–3f(1) and 4–3f(2), referral and disposition under the DES takes precedence over the administrative separation action.

gOfficers pending administrative elimination.

(1)         Generally, officers approved to resign for the good of the Service in lieu of trial by court-martial are ineligible for referral to the MEB and PEB. However, if the officer was referred to the MEB prior to approval of the resignation, the MEB and/or PEB must be completed and the case dual processed as described in paragraph 4–3g(2).

(2)         Officers pending administrative elimination under AR 600–8–24 are normally dual processed for the elimination action and completion of the DES. For dual processing to occur, referral to the MEB must occur before the date the Deputy Assistant Secretary of the Army (Review Boards) approves the officer’s elimination.

h.    Certain adverse line of duty findings.  A Soldier whose disability results from intentional misconduct or willful neg-

ligence or was incurred during a period of unauthorized absence or excess leave may be subject to administrative separation under AR 135–175, AR 135–178, AR 600–8–24, or AR 635–200, as applicable, without referral to the DES for a fitness determination.

i.     Prognosis of imminent death or terminal illness.  Expediting a Soldier’s case or requesting that a Soldier’s case be

expedited for a Soldier having a prognosis of imminent death is not authorized.

4–4.  Waiver of Disability Evaluation System

In certain circumstances, Soldiers may waive referral to the DES process. The PEBLO must inform the Soldier about the DES process, their right to a PEB, and the potential benefits of remaining in an active duty or active Reserve status for purposes of completing the DES process. The Soldier will be advised that they have the right to consult with a SMEBC prior to waiving referral to the MEB or informal physical evaluation board (IPEB). The Soldier must request a waiver in writing and such request, or an affidavit, must attest that the Soldier has received the information described above and declines referral to the PEB. The waiver must be filed in the Soldier’s health records and official personnel record. Waiver requests are authorized in the circumstances listed below.

a.         The Soldier's conditions existed prior to service (EPTS). The Soldier must be on continuous active duty for more than 30 days.  The MEB must provide clear and unmistakable evidence that the Soldier’s medical condition(s) that do not meet medical retention standards are EPTS and did not permanently worsen or progress beyond natural progression while on active duty (specifically, were not service aggravated) (see DA Pam 635–40 for procedures).

b.         The DES process would likely require extension past the date of the Soldier’s ETS and the Soldier does not consent

to retention.

(1)         Soldiers cannot be involuntarily retained past ETS even though they may have a remaining service obligation.

(2)         Soldiers approved for separation under any program that incurs a Reserve obligation, and who have condition(s) that are cause for referral to the DES, may not waive the DES process.

(3)         Soldiers of the RC on active duty under a call to duty of more than 30 days may continue the DES process upon release from active duty (REFRAD). The Soldier must maintain a Ready Reserve status, sign a waiver declining retention on active duty, and be counseled that the provisions of 10 USC 1207a (coverage of unfitting, non-service-connected disability) will not apply when REFRAD occurs before the case is received at the PEB.

c.  The DES process would likely require extension past a Soldier’s established retirement date (other than retirement

under the Temporary Early Retirement Authority), and the Soldier does not wish to delay retirement.

(1)         Soldiers who are pending permanent or temporary disability retirement and who are eligible for a length of service retirement at the time of their disability evaluation may elect to be retired for disability or for length of service. However, when retirement for length of service is elected, the Soldier’s retirement date must occur no later than the date the Soldier would have been retired for disability.

(2)         Whether a Soldier may waive DES evaluation or disposition to elect retirement under a Temporary Early Retirement Authority depends upon the Temporary Early Retirement Authority eligibility policy in effect at the time of the Soldier’s DES referral or disposition.

4–5.  Additional matters concerning legal representation of Soldiers

a.     Legal representation of Soldiers by SMEBC personnel will terminate on the Soldier’s election for a FPEB, or upon

separation, retirement, or return to duty, whichever occurs first. If a Soldier requests a FPEB and requests appointed counsel, the SMEBC will transfer the case to the appropriate office of SPEBC. Upon request by appointed SPEBC, the SMEBC will remain involved to assist the SPEBC throughout the PEB and post-PEB appeals process. When requested, the SMEBC’s role will continue to be covered by the provisions of AR 27–26.

b.     Legal representation by the SPEBC terminates upon a Soldier’s separation, retirement, or return to duty.

c.      Soldiers traveling to a FPEB must be afforded sufficient time to arrive (more than one duty day) in advance of their

scheduled hearing to confer with appointed legal counsel.

d.     The SMEBC and SPEBC will have access to information contained in computerized databases and electronic medical records that relate to their clients’ medical condition and DES case status. Access to information includes, but is not limited to, documents in eMEB, ePEB, data not restricted under paragraph 4–22e, Veterans Tracking Application, e-Profile, Armed Forces Health Longitudinal Technology Application (AHLTA), and Healthcare Artifact and Image Management Solution.

e.      The SMEBC and SPEBC must receive the Soldier’s DES case file in a timely manner to assist Soldiers with their timely DES elections and to prepare rebuttals, if appropriate. Counsel’s failure to timely receive a Soldier’s DES case file will constitute good cause to extend a Soldier’s DES election period.

f.       When Soldiers request appointed counsel, the SPEBC must be provided both the Soldier’s DES case file and notice of a scheduled FPEB hearing at least 10 days prior to the hearing. Normally, caseload for SPEBCs will not exceed ten scheduled FPEB hearings per counsel per week. The MEDCOM SJA, in consultation with the Director of the OSC, MEDCOM, may approve exceptions to this caseload standard and will report any exceptions granted to the Director, Soldier and Family Legal Services.

g.     The PEB will provide the Soldier’s SMEBC and/or SPEBC with a copy of all correspondence, responses to appeals

or requests for VA rating reconsideration, and all other documents directed to the Soldier.

4–6.  The Reserve Component Medical Evaluation Board Tracking Office

a.         The MEBTO is an established IDES service line component whose mission is to enhance Army readiness by provid-

ing clear, concise RC IDES guidance, training, and oversight to support the IDES enterprise.

b.         The MEBTO will regulate all Component 2/Component 3 (excluding 10 USC AGR and RC Soldiers activated greater than 30 days) referrals to designated IDES locations. The RC referring authorities will ensure all referrals are processed in accordance with DA Pam 635–40.

c.         The MTFs and/or MEB Remote Operating Centers will not accept direct referrals of Component 2/Component 3 (excluding 10 USC AGR and RC Soldiers activated greater than 30 days).

d.         The RC will use the National Guard Bureau Health Information System, Medical Electronic Data (for) Care History

and Readiness Tracking, and its sub-module named Medical Evaluation Board Preparation Module to process MEB referrals through the MEBTO.

Section II Medical Evaluation Board 4–7.  Policy

a.         An MEB is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per AR 40–501. With the exception of cases referred by MAR2, an MEB may determine that a Soldier’s condition(s) meet medical retention standards and recommend the Soldier be returned to duty. (See para 3–5c, concerning MEB actions on

MAR2 cases.)

b.         The MEB must not provide conclusions or recommendations regarding fitness determinations.

4–8.  Status of Soldiers undergoing disability evaluation

From the time a Soldier receives a P3/P4 profile referring them to a MEB until the time the DES process is completed

(including a decision on any appeal) or the Soldier is returned to duty, the Soldier—

a.    Will remain available for the DES process to complete any required actions. Leave, while permissible, is generally discouraged in the MEB phase with the exception of emergency situations. Commanders may grant leave as long as the leave or other required absence is communicated immediately to the assigned PEBLO and does not prevent timely completion of DES appointments. Commanders should encourage Soldiers to use accrued leave after the IPEB adjudication when the Soldier is not requesting a FPEB.

b.    Is ineligible for assignment instructions or orders with the exception of orders for assignment to the Warrior Transi-

tion Unit or Community Care Unit. If the Soldier has already received assignment orders prior to initiation of the DES process, the process must be completed and a final decision rendered before the Soldier proceeds on assignment.

c.    In accordance with AR 614–100 and AR 614–200, is ineligible for permanent change of station other than: (1)  Home on permanent change of station leave under the provisions of AR 600–8–10; or

(2)  When required for a Soldier stationed outside the continental United States to complete the DES. (Also see DA Pam

635–40.)

d.            Is ineligible for transfer within a component or transfer between components. This includes involuntary transfer to the IRR when the RC Soldier is otherwise eligible to remain a member of the Selected Reserve during DES evaluation.

(Also see para 4–8f.)

e.             Is ineligible to be scheduled for or attend training for which the U.S. Army Training and Doctrine Command is the proponent.

f.              May extend their enlistment or be retained for medical reasons to complete DES process, if otherwise eligible for such extension and/or retention, under the regulations listed below. Requests for retention should be approved unless the Soldier is disqualified for retention under another provision of this regulation.

(1)    AR 135–175 for retention of USAR and ARNG officers in RC active status.

(2)    AR 135–178 for retention of USAR and ARNG enlisted Soldiers in RC active status.

(3)    AR 601–280 for extension of enlistments.

(4)    AR 635–200 for retention of enlisted Soldiers on active duty.

(5)    AR 600–8–24 for retention of officers on active duty.

g.    Is eligible for awards and for promotion consideration, promotion selection, and promotion. (See AR 600–8–19 and

AR 600–8–29. See also paragraph 4–30 for grade issues in relation to disability benefits and disposition.)

h.    Is subject to the UCMJ, adverse administrative action, or separation pursuant to AR 635–200. Partial or complete

dual processing may be required (see para 4–3).

4–9.  Disenrollment from the Disability Evaluation System as a result of certain adverse circumstances or actions

Soldiers pending adverse actions or involuntary administrative action are eligible for the DES as set forth in paragraph 4–

3. Disenrollment from DES, or termination of the case for any other reason, will occur no earlier than as prescribed below.

a.     Enlisted Soldiers with an initiated or approved administrative separation for misconduct or fraudulent enlistment will be disenrolled when the MEB is completed, the Soldier’s GCMCA has reviewed the MEB, and the GCMCA has directed in writing to proceed with the administrative separation. If the separation action was initiated after the Soldier’s MEB was forwarded to the PEB, the last level of approved PEB findings prior to initiation of separation will be provided to the GCMCA for consideration in their decision.

b.     Officers pending an administrative elimination action are disenrolled from the DES on the date the elimination action

is approved by the Army Review Boards Agency.

c.      Enlisted Soldiers and officers who are approved for discharge or resignation, as applicable, in lieu of trial by court-

martial are disenrolled on the date the separation or resignation is approved. (Also see paras  4–3f through 4–3g.)

d.     Officers and enlisted Soldiers who are under investigation for or charged with a UCMJ offense that could result in a

punitive discharge will be disenrolled on the date the punitive discharge has been approved by the Soldier’s GCMCA.

e.      Soldiers charged with civilian offenses that if charged under the UCMJ could result in a punitive discharge are dis-

enrolled if the Soldier is—

(1)      Incarcerated or is otherwise not present for duty to complete the DES.

(2)      Approved for separation or elimination action on the basis of civil conviction. For an enlisted Soldier, the MEB must be completed and reviewed by the Soldier’s GCMCA and the GCMCA must have directed in writing to proceed with the separation action. For an officer, the MEB and PEB phase must be completed unless the Army Review Boards Agency approved the elimination action before the Soldier was referred to the MEB.

4–10.  Preparation for the Medical Evaluation Board

a.  Generally, upon referral into the DES, the physician approving the Soldier’s P3/P4 profile will initiate the VA Form 21–0819 (VA/DOD Joint Disability Evaluation Board Claim) by completing Section 1 and transmitting the form to the office designated by the MTF commander. For Soldiers referred from outside the continental United States and for RC Soldiers referred from a nonactive duty status, the MTF initiates and completes VA Form 21–0819, Section 1. b.  A PEBLO will be assigned to the Soldier to—

(1)         Contact the Soldier to provide them with a general overview of the DES process, review Section 1 of the VA Form 21–0819 with the Soldier, and inform the Soldier of their right to be represented by an attorney during the DES process.

(2)         Notify the unit commander of the Soldier’s enrollment in the DES. Verify with the Soldier’s unit commander whether there are any administrative or UCMJ actions pending or initiated on the Soldier and/or whether the Soldier is currently in civilian confinement awaiting trial or due to civilian sentencing.

(3)         Initiate DA Form 5893 (Soldier’s Medical Evaluation Board/Physical Evaluation Board Counseling Checklist). The Soldier and PEBLO will initial and date counseling entries on the DA Form 5893 as counseling occurs. The supervisor of the PEBLO will review checklists to ensure that counseling occurs when required. At a minimum, the supervisor will document their review by initialing and dating the DA Form 5893 in the instances listed below.

(a)   Before the PEBLO forwards the case to the PEB.

(b)   When the PEBLO counsels the Soldier on PEB results.

(4)  Request a non-medical assessment from the Soldier’s commander detailing the Soldier’s ability to perform their current duties, using DA Form 7652. When required by AR 600–8–4, ask the Soldier’s commander to conduct an LOD investigation (informal or formal, as applicable) for referred conditions, and, upon approval of the investigation, provide a copy of it in its entirety to the PEBLO.

(5)  Gather the complete service treatment record, including civilian medical records.

(6)  Assemble the case file as outlined in DA Pam 635–40.

(7)  Forward the case file to a VA military service coordinator (MSC).

(8)  Advise eligible Soldiers that they are required to begin the Soldier for Life – Transition Assistance Program immediately (see para 4–31).

c.             The Soldier will have the opportunity to claim conditions on VA Form 21–0819, Section 3. After the Soldier, or a designated representative, submits VA Form 21–0819 to the MSC, the Soldier may claim additional conditions, but the VA will not evaluate the added claimed conditions until after separation from Service unless the PEB refers the condition for further VA or MEB evaluation before issuing a final fitness determination, or if the MEB approving authority concludes that adding a new medical condition is necessary to ensure the MEB findings adequately reflect the complete spectrum of a Soldier’s injuries and illnesses. If desired, the Soldier may seek legal advice from an attorney assigned as MEB counsel, private legal counsel retained at their own expense, or a VA-accredited representative of a service organization recognized by the Secretary of VA. Submission of a DD Form 2807–1 (Report of Medical History) or completion of VA Form 21– 0819, block 3, is entirely voluntary. Involuntary information provided on those forms relating to the origin, incurrence, or aggravation of a disease or injury will not be used by DOD in any manner against the interest of the Soldier.

d.            If the member testifies or makes a statement as to information surrounding a restricted report of sexual assault to assist the PEB in a fitness for duty or disability determination, the disclosure to the PEB does NOT cause a restricted report to be considered unrestricted, and all restricted reporting information remains confidential and protected.

e.             The VA will arrange for qualified medical examiners to perform the examination as required by the Army to complete

the MEB and PEB determination.

4–11.  Appointment of the Medical Evaluation Board

aGeneral requirements.

(1)      The MTF commander or designee will appoint MEB members.

(2)      MEBs will be composed of two or more physician members.  One of the MEB members will prepare the NARSUM of the Soldier’s medical conditions.  A senior medical officer will serve as the MEB approving authority and will have detailed knowledge of regulations pertaining to standards of medical fitness and disability separation processing.  The other member(s) will have working knowledge of these matters.  When a MEB is considering a dental condition, the membership of the board will include a dentist.  When a MEB is considering a psychiatric diagnosis, the MEB will include a psychiatrist or a clinical psychologist with a doctoral degree in psychology, who may also substitute for the second MEB physician member.  If the MEB members disagree on the case, the MTF commander or designee may appoint an additional voting member to review the proposed findings and provide the majority position.

bMedical Evaluation Board composition for Medical Corps officers.

(1)         Unless otherwise directed by MEDCOM, the MEB for Medical Corps (MC) officers will not be conducted by the MTF to which the MC officer is assigned. A MC officer may appear before a board at another MTF within their regional medical command provided the review authority is not in the officer’s rating chain.

(2)         Requests for authority to deviate from policy regarding MEB procedures for MC officers will be forwarded to MEDCOM (MCHO–CL–P), 2748 Worth Road, Fort Sam Houston, TX 78234–6010. A copy of the approval, if granted, will be attached to each copy of the board proceedings.

(3)         MEB will be held at San Antonio Military Medical Center for all MC officers with duty station at Fort Sam Houston except those assigned to San Antonio Military Medical Center and MEDCOM.

(4)         MEB members for MC officers assigned to MEDCOM will be appointed by TSG or their designated representative.

4–12.  Medical Board proceedings

a.    The MEB NARSUM is the heart of the MEB. The NARSUM will be prepared in accordance with the procedures

outlined in DA Pam 635–40.

b.    The NARSUM will include the following information:

(1)  Soldier identification. Soldier name and PMOS spelled out.

(2)  Sources and references.

(3)  Baseline documentation.

(4)  Diagnoses for DA Form 3947 (Medical Evaluation Board Proceedings). Include AR 40–501 citation for diagnoses that do not meet medical retention standards.

(5)  Medical retention determination point statement.

(6)  Profile review and/or update and discussion. This is a crosswalk between conditions listed on the DA Form 3349 and specific associated functional activity limitations. Note: It is helpful for the MEB provider to specifically indicate they considered all conditions listed in section 4 of the NARSUM.

(7)  For each condition that does not meet retention standards:

(a)   Medical basis of diagnosis.

(b)   Onset. (Duty status; date symptoms began and/or condition diagnosed; geographical location; mechanism of injury.) (c)  Treatment Summary. Brief summary of treatment; Soldier's response to treatment; current limitations.

(d)  Noncompliance issues, if any (see AR 600–20).

(e)   Prognosis statement. Indicate whether it is likely that Soldier's condition will significantly worsen or improve over the next five years.

(f)    Impact on duty beyond profile limitations.

(g)  Selection of applicable AR 40–501 provision with tailored discussion.

(8)  Competency statement. Where the Soldier has one or more behavioral health diagnoses, the MEB provider indicates whether the Soldier is:

(a)   Mentally competent for pay purposes.

(b)   Capable of understanding the nature of, and cooperating in PEB proceedings.

(c)    Dangerous to themselves or others.

(9)  Conditions meeting retention standards.

(10)                       Timeliness issues and/or quality check. In this section, the MEB provider addresses any issues regarding timeliness of examinations and apparent inconsistencies.

(11)                       Signature of NARSUM provider and date signed.

c.             Sources of information to prepare the NARSUM include the VA examination, the DA Form 7652, pertinent clinical

records, and other records in the case file, as appropriate.

d.            The NARSUM preparer conducts an administrative review of records, to include the VA medical examination. With reference to the VA medical examination, the NARSUM preparer may seek clarification or correction from the VA. The NARSUM preparer will resolve any inconsistencies regarding diagnosis, onset, severity, and impact on duty. Where there is sufficient information upon which to base a finding, no additional clinical evaluation is required. Where there is insufficient evidence upon which to base a finding, the MEB provider may obtain additional information from treating providers, commanders, and/or the Soldier through phone, email, or, when necessary, a non-clinical face-to-face meeting.

e.             With reference to the proposed DA Form 3947 entries as specified in the NARSUM, the PEBLO will prepare a draft DA Form 3947 using the information set forth in section 4 of the NARSUM. The PEBLO will forward this draft and the case file to the MEB members for review and signature.

f.              The MEB will recommend that the case file be forwarded to a PEB for a fitness determination when the MEB finds that one or more of a Soldier’s medical conditions individually or collectively do not meet medical retention standards. The MEB will recommend the Soldier be returned to duty or returned to duty with limitations when the MEB finds all medical conditions meet retention standards, and the Soldier was not referred by MAR2. See paragraph 3–5c, regarding the Soldier referred by MAR2.

g.            In cases where the Soldier has been determined mentally incompetent, a statement confirming the name, address, telephone number, and relationship of a person authorized to act on behalf of the Soldier, whether this person is available for counseling following PEB action, and whether the person has been advised of the referral to a PEB must be included in the MEB documents. If the next-of-kin is not known or cannot be located and no court-appointed guardian exists, include a summary of the attempts to identify or locate the next-of-kin. To establish the person having authority to act for a mentally incompetent Soldier, in the absence of a valid, durable, and pertinent power of attorney (dated before the finding of incompetence) or a court order authorizing an individual to act for a mentally incompetent Soldier, follow the guidelines below. The person authorized to act is the person highest in the line of authority listed below.

(1)      Spouse, even if a minor.

(2)      Adult sons or daughters in order of seniority. A person is an adult upon reaching the age of majority under the state law of the person’s legal residence.

(3)      Parent in order of seniority, unless legal custody was granted to another person by reason of court decree or statutory provision. The person to whom custody was granted remains as next-of-kin although the person has reached the age of majority.

(4)      Blood or adoptive relative who was granted legal custody of the person by reason of a court decree or statutory provision. The person to whom custody has been granted remains the nearest next-of-kin although the person has reached age of majority.

(5)      Adult brothers and sisters in order of seniority.

(6)      Grandparents in order of seniority.

(7)      Other relatives in order of relationship to the Soldier and according to the laws of the Soldier’s domicile. A Soldier’s domicile is the Soldier’s legal residence. It is not necessarily where the Soldier is actually living, the Soldier’s home of record, or where the Soldier is stationed.

(8)      Persons who stand in place of a parent. Seniority in age will control when the persons are of equal relationship.

h.         No individual will serve as both the MEB approval authority and MEB appellate authority.

i.          If information about a restricted report of sexual assault comes to a commander’s attention as a result of a disclosure that is required for fitness of duty or disability determination, the commander will not report the matter to an military criminal investigative organization. The nature of the report shall remain restricted and the disclosure of information shall only be used to assist the command in preparing input to the medical board via the non-medical assessment; and the victim’s communications remain confidential.

4–13.  Soldier’s opportunities for further review

a.            Following the MEB decision, the PEBLO will inform the Soldier of their election options. These election options include both an option to request an impartial medical review (IMR) and an option to submit a rebuttal of the MEB findings. With respect to these two options, the PEBLO will inform the Soldier that they may seek legal advice from an attorney assigned as MEB counsel, private legal counsel retained at their own expense, or a VA accredited representative of a service organization recognized by the Secretary of VA.

b.            The Soldier must sign the DA Form 3947 within five days of receiving and being counseled on the MEB findings, unless an extension is granted for good cause (for example, appointed legal counsel is unavailable).  Absent an approved extension, the MEB decision becomes final on the fifth day, and the MEB convening authority will authorize the PEBLO to forward the case file to the servicing PEB. In cases where the Soldier does not sign the DA Form 3947, the PEBLO will add to the case file a memorandum describing the efforts to contact the Soldier or indicating the Soldier was found to be incompetent by the MEB. The Soldier’s signature on the DA Form 3947 indicates one of the following:

(1)  The Soldier concurs with the MEB decision.

(2)  The Soldier requests an IMR.

(3)  The Soldier does not request an IMR, does not concur with the MEB findings, and has an additional seven days to submit a written rebuttal.

4–14.  Impartial medical review

a.            The purpose of the IMR is to inform the Soldier whether (in the IMR reviewer’s opinion) the MEB findings ade-

quately reflect the complete spectrum of the Soldier’s injuries and illnesses. Generally, a Soldier may request one IMR. If the PEB returns a Soldier’s case for further VA and MEB evaluation of a new medical condition as provided for in paragraph 4–10c, the Soldier will have an opportunity to request another IMR; however, it will be limited in scope to addressing the MEB findings for the PEB-returned condition.

b.            The MTF commander or designee will appoint a physician or other appropriately credentialed provider to conduct

the IMR. This impartial medical reviewer must not be either the MEB approval authority or a member of the MEB.

c.             The impartial medical reviewer will examine the medical evidence as presented in the NARSUM and all other MEB information to include the completed VA examinations and all records the Soldier intends to submit for inclusion within the MEB.

d.            Within five days of being appointed to conduct the IMR, the impartial medical reviewer will prepare their findings and inform the Soldier of whether the MEB findings adequately reflect the complete spectrum of the Soldier’s injuries and illnesses. They will sign the DA Form 3947 and forward their findings to the PEBLO and the counsel of record, if any.

e.             Where the IMR findings indicate that the MEB does not adequately reflect the complete spectrum of the Soldier’s injuries and illnesses, the MEB approval authority will appoint an appropriately credentialed provider (who may be a member of the MEB) to consider the IMR findings. Barring unusual circumstances, when the Soldier requests an IMR and submits an MEB rebuttal, the same individual will consider both the IMR findings and the MEB rebuttal, respectively. In unusual circumstances, the MEB appeals authority may forward the IMR findings and the MEB rebuttal to TSG or another MTF for adjudication.

f.              Within seven days of receiving the IMR findings, the MEB approval authority will uphold the original NARSUM or

return the NARSUM to the NARSUM preparer for reconsideration.

g.            The MEB approval authority will include a document specifically prepared in response to the IMR findings explain-

ing the foundation for conclusions; whether these conclusions are that no changes are warranted in the NARSUM or other MEB document, or that additional consideration has caused the NARSUM preparer to revise the NARSUM or any other MEB component. The MEB approval authority will advise the PEBLO once all action is completed.

h.            The PEBLO will provide a copy of the MEB approval authority’s response to the IMR to the Soldier and the Soldier’s appointed counsel (if counsel is identified on the IMR request as a point of contact).

i.              Within seven days after Soldier and the PEBLO receive the IMR findings indicating the MEB adequately reflects the complete spectrum of the Soldier’s injuries and illnesses, or within seven days of Soldier being informed by the PEBLO of the MEB approval authority’s response to the IMR, the Soldier may submit a written MEB rebuttal to the PEBLO. Upon request by the Soldier or their representative and when good cause is shown, the MEB approval authority will extend this time period.

4–15.  Medical Evaluation Board rebuttal

a.            Provided the Soldier has not requested an IMR, the Soldier may submit a written MEB rebuttal to the PEBLO within

seven days after signing the DA Form 3947. Upon request by the Soldier or their representative, the MEB approval authority will extend this time period when good cause is shown.

b.            When the Soldier has requested an IMR, the Soldier may submit a written MEB rebuttal to the PEBLO within seven days after the Soldier and the PEBLO receive the IMR findings indicating the MEB adequately reflects the complete spectrum of the Soldier’s injuries and illnesses or within seven days of the Soldier being informed by the PEBLO of the convening authority’s response to the IMR review. Upon request by the Soldier or their representative, the MEB approval authority will extend this time period when good cause is shown.

c.             In general, the Soldier may submit only one written MEB rebuttal. The Soldier may submit an additional MEB rebuttal when the MEB revises its prior findings with respect to adding or removing diagnoses and/or revising prior MEB findings with respect to whether one or more conditions is cause for MEB referral. Any additional MEB rebuttals will be limited to issues relating to MEB revisions.

d.            The MTF commander will appoint a physician or other appropriately credentialed provider to address the Soldier’s MEB rebuttal. Barring unusual circumstances, when the Soldier requests an IMR and submits a MEB rebuttal, the same individual will consider both the IMR findings and the MEB rebuttal, respectively. Within seven days of the MEB approval authority receiving the MEB rebuttal, the MEB approval authority will uphold the original MEB, amend the findings, or return it to the MEB. In unusual circumstances, the MEB appellate authority may forward the IMR findings and the MEB rebuttal to TSG or to another MTF for adjudication.