A. Injury.

The Physical Evaluation Board (PEB) process usually begins with an injury or the onset of a disease that causes the soldier to seek medical treatment. In the course of receiving medical treatment, the treating physician will evaluate the soldier. If the physician believes that the soldier is unable to perform all of his duties, the treating physician will restrict the soldier from some or all of his duties for a period of time. The treating physician restricts the soldier’s duties and physical activity in an attempt to aid the healing process and to prevent further injury. If a soldier’s condition is serious enough to raise a question in the physician’s mind as to whether the soldier is fit to continue to perform in the military, the physician can begin a Medical Evaluation Board (MEB) on the soldier.

B. Medical Evaluation.

In most cases this is how a soldier gets to the Medical Evaluation Board and eventually to the PEB. In other cases, a soldier’s chain of command can request a medical evaluation for a soldier. The chain of command can not request a medical board, but merely an evaluation. If the physician believes that a medical board is required based on his/her evaluation, he/she can begin one. The decision to begin a medical board is left entirely with the treating physician or the hospital commander.

C. Profile.

Another way a soldier gets to a medical board, is if a treating physician gives a soldier a P-3 or P-4 profile. Once a soldier has been given a permanent (P-3 or P-4) profile, the installation Adjutant General Division (AG) will eventually receive notice. A P-3 profile signals to AG that a soldier may not be able to physically or mentally perform his/her military duties. Therefore, AG will direct that an MOS Medical Review Board (MMRB) be held.

D. The MMRB’s function is to determine if the soldier is able to perform in his/her current MOS. 

This board can also recommend that the soldier be reclassified into another MOS. If the board believes that the soldier can not function in any available MOS, the board can send the soldier back to the hospital to begin the medical evaluation board process. At this point the hospital can reduce the soldier’s profile and send him/her back to the MMRB, or the hospital can begin an evaluation board and send the soldier to the PEB.

II. THE MEDICAL EVALUATION BOARDS (MEBs)

A. Purpose of the Medical Evaluation Boards (MEBs).

 MEBs are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s medical status. A decision is made as to the soldier’s medical qualification for retention based on the criteria in AR 40-501, chapter 3. The board reviews the soldier’s medical records and discusses the soldier’s medical history. From this information, the board makes a determination as to the soldier’s medical fitness. Do not confuse medical fitness with physical fitness - they are not the same things. Decisions regarding unfitness for further military duty because of physical or mental disability are the prerogative of the PEBs. MEBs will not express conclusions or recommendations regarding such matters.

1. The term "medical fitness" refers to whether a soldier meets the medical retention standards of AR 40-501.

2. Physical fitness, on the other hand, refers to whether a soldier is physically fit to adequately perform the duties of his/her rank and MOS under 635-40.

B. Composition of a MEB. 

MEBs will be composed of two or more physician members. One will be a senior medical officer with detailed knowledge of directives pertaining to standards of medical fitness and disposition of patients, disability separation processing, and the Veterans Administration Schedule for Rating Disabilities. The other member(s) will be familiar with these matters. When a board is considering conditions that normally fall within the professional jurisdiction of the Dental Corps, the membership of the board will include a dentist. Likewise, a board considering a psychiatric problem will include a psychiatrist. In cases involving a determination of mental competency, the medical board will consist of at least three members, one of whom will be a psychiatrist.

C. MEB Proceedings. 

Medical boards operate informally. Their members assemble to discuss and evaluate the patient’s case. Clinical, health, and other records, as appropriate, are reviewed. When a patient’s condition permits, he/she should be given the opportunity to appear in person and present his/her views relative to the proposed disposition. If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the solder to a PEB.

III. PHYSICAL EVALUATION BOARDS (PEBs)

A. Overview of PEB System.

The PEBs is the system Congress devised to separate or medically retire soldiers who are no longer able to perform their duties in the military due to a disease or injury. The PEB’s primary task is to determine the physical fitness or unfitness of soldiers in the U.S. Army. The Board does this by assessing the soldier’s physical or mental capabilities and matching this with the individual soldier’s grade/rank and duties required of the soldier’s MOS. The board makes this determination by reviewing the soldier’s medical board, personnel records (201 file) and other administrative documents. If a soldier is found unfit, the board can then apply the Veterans’ Administration Schedule for Rating Disabilities (VASRD) and recommend a percentage rating for each unfitting condition. This is essentially a two step process. First, the board must make a finding of fit or unfit. Only when a finding of unfitness is made does the board begin to discuss recommending a disability rating.

B. Line of Duty Determination.

 Before a soldier can be recommended for a disability rating by the PEB, the injury must have occurred while the soldier was entitled to receive basic pay, and the injury can not be due to soldier’s intentional misconduct or willful neglect. A line of duty determination of "yes" is a prerequisite for military disability benefits. This does not mean that there must be an approved line of duty at the time of the formal board. It means that a line of duty must have been requested, and based on the evidence before the board it appears that approval is likely. It must be pointed out that while the PEB has the authority to make presumptive line of duty determinations, the PEB does not have the authority to change adverse line of duty determinations. Even though the board does not have the authority to change a line of duty ‘no" to a line of duty "yes", the board can request that The Adjutant General review the decision before final processing at the HQDA level. Thus, when the board has a question as to the appropriateness of a favorable line of duty determination, they can attempt to have the line of duty determination overturned by requesting such a review. The same is true for an unfavorable line of duty determination.

C. Eligibility for Disability Evaluation. 

To be eligible for disability evaluation a soldier must meet the following qualifications.

1. A soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, can not be referred for, or continue, disability proceedings, unless:

(a) the investigation ends without charges.

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

(c) the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence.

2. If civil criminal court action is pending and the soldier is present for duty, disability processing continues provided any movement of the soldier is cleared with responsible military and civilian authorities.

3. An enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions, unless the commander exercising general court-martial jurisdiction over the soldier abates the administrative separation. This authority may not be delegated.

4. A soldier being considered for separation because of unsatisfactory performance under AR 635-200, Chapter 13, must be referred for disability processing upon approved recommendation of a MEB.

5. A commissioned or warrant officer will not be referred for disability processing instead of elimination action (administrative separation) that could result in separation under other than honorable conditions. Officers in this category who are believed to be unfit because of physical disability will be processed simultaneously for administrative separation and physical disability evaluation. The Secretary of the Army will make the determination of which action will be taken.

D. Initiation of Medical Evaluations. 

The medical evaluation, as discussed in Section I above, may be initiated by a referral by HQDA, the commander of MTFs, or by a soldier’s commanders. When a commander believes that a soldier of his/her command is unable to perform the duties of his/her office, grade, rank, or rating because of physical disability, the commander will refer the soldier to the responsible MTF for evaluation. The request for evaluation will be in writing and will state the commander’s reasons for believing that the soldier is unable to perform his/her duties.

E. Composition of PEBs.

PEBs will consist of at least three members (president, personnel management officer, and a medical member). PEB members will be experienced officers who are thoroughly familiar with board procedures. The president and personnel management officer will be field grade officers (other than Medical Corps) on active duty in the U.S. Army. The medical member will be either an officer of the U.S. Army Medical Corps or a Department of the Army civilian (DAC) physician with previous U.S. Army Medical Corps experience. The medical member must not have served in any capacity with the MEB that referred the soldier to the PEB. If possible, the voting members should be senior to the person being evaluated.

1. When requested, the PEB will substitute a female or minority soldier of the same minority group for one of the regular members of the board, if the requested representation is reasonably available. The request should be made at the time of the request for a formal hearing.

2. When an enlisted soldier is being evaluated, the PEB will upon request of the soldier, include enlisted representation if reasonably available. The request should be made at the time of the request for a formal hearing. The enlisted representation must be in the ranks of sergeants first class to sergeants major and senior to the soldier being evaluated. When enlisted representation is provided, the PEB will increase to five members, all of whom will have a vote. The fifth member may be another enlisted or an officer.

F. Informal PEB. 

Each case referred to a PEB is first considered by an informal PEB. An informal board must ensure that each case considered is complete and correct. The rapid processing intended by the use of informal boards must not override the fundamental requirement for detailed and uniform evaluation of each case. Once an informal PEB has made its determination, the soldier must make one of the following elections and return their election to the PEB within 10 days of the soldier’s receipt of the informal findings:

1. concurrence with findings and recommendations and waiver of a formal hearing.

2. nonconcurrence with the findings and recommendations; submission of a rebuttal explaining the soldier’s reasons for nonconcurrence; and waiver of a formal hearing.

3. demand for a formal hearing with or without personal appearance by the soldier and choice of counsel if a hearing is demanded.

G. Formal PEB. 

A formal PEB hearing will normally be conducted before a board composed of the same members who considered the soldier’s case informally. The purpose of a formal hearing is to afford the soldier the opportunity to present views, testimony, and new evidence. The board members must consider these matters with open minds despite their earlier decisions. Therefore, if a solider is able to establish that a member of the formal board is not impartial, that board member will be replaced.

H. Soldier’s rights during a formal PEB.

1. The Privacy Act of 1974 applies to information of a personal nature requested of the soldier during a formal hearing.

2. The soldier may testify as a witness under oath in his/her own behalf, in which case the soldier may be cross-examined as any other witness.

3. The soldier or the soldier’s counsel may introduce witnesses, depositions, documents, or other evidence in his/her own behalf, and cross-examine witnesses who have been examined by the PEB including witnesses who have specific knowledge of the soldier’s case and whose conversations have been summarized for the record.

4. The soldier or soldier’s counsel may make unsworn statements, orally, or in writing, or both, without being subject to cross-examination.

5. The soldier may remain silent. The choice not to make a statement or answer questions is not to be considered adverse to the soldier’s interest.

6. The soldier has a right to counsel to represent him/her at a formal PEB hearing. If the soldier declines to be represented by counsel, he/she must do so in writing.

I. PEB Determination. 

The voting members of a PEB make findings and recommendations by a majority vote. All findings must be based on a preponderance of the evidence. Recommendations must be supported by the board’s findings. The board determines the following:

1. Whether the soldier is physically fit or unfit to perform the duties of the soldier’s office grade, rank or rating.

2. Whether the disability is of a permanent nature.

3. Whether the disability meets the criteria established by law for compensation. This determination considers the following questions:

a. Was the disability incurred or aggravated while the soldier was entitled to basic pay?

b. Was the disability the result of misconduct or willful neglect or incurred during a period of unauthorized absence?

c. Was the disability incurred in the line of duty during a time of war or national emergency or incurred in the line of duty after 14 September 1978?

d. For a reservist, was the disability the proximate result of performing active duty or inactive duty training? If the disability results from a disease, was it incurred prior to or after 15 November 1986?

4. Whether the disability meets the criteria for exemption of disability retired or severance pay from gross federal income.

5. Whether the disability meets the criteria for Civil Service preference eligible status and exemption from the Dual Compensation Act.

J. Standards of unfitness because of physical disability.

 The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his/her office, grade, rank, or rating. Inadequate duty performance should not be considered as evidence of physical unfitness unless a cause and effect relationship exist between the inadequate duty performance and the presence of physical disabilities. 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. 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/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.

K. Soldier’s Response to Board’s Determination. 

Just as with the informal PEB’s determination, the soldier must make an election within 10 days as to the formal PEB’s determination. The election must be received by the board within the 10 day period. The basic election is either to concur or nonconcur. If the soldier fails to make a election within the time period, the PEB will deem that the soldier has waived the right to an election and the proceedings will be forwarded to PERSCOM for final disposition. If the soldier nonconcurs with the PEB’s determination, the matter will be forwarded to the U.S. Army Physical Disability Agency (USAPDA).

IV. THE U.S. ARMY PHYSICAL DISABILITY AGENCY (USAPDA).

A. Soldier nonconcurrs. 

If a soldier nonconcurrs with the finding of a formal PEB, the soldier’s case, along with any rebuttal written by the soldier, should be sent to USAPDA for review. The purpose of the USAPDA review is to ensure that the following criteria have been satisfied.

1. The soldier received a full and fair hearing.

2. The proceedings of the medical evaluation board 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.

B. Determinations.

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.

3. Issue revised findings providing for a change in disposition of the soldier or change in the soldier’s disability rating.

4. Refer the case to the APDAB.

C. Soldier’s response. 

Just like before, the soldier must make an election and submit it to the USAPDA within 10 days of the soldier’s receipt of the USAPDA determination. If the soldier concurs with the revised findings and recommendations, then USAPDA will approve the case for the Secretary of the Army and forward the case to PERSCOM for final disposition. If the soldier nonconcurrs and submits a statement of rebuttal explaining his/her reasons for disagreement, and the consideration of the rebuttal does not result in a change to the revised findings, then USAPDA will forward the case to APDAB for review.

V. ARMY PHYSICAL DISABILITY APPEAL BOARD (APDAB)

A. The APDAB is a component of the Army Council of Review Boards. It reviews cases forwarded by the USAPDA.

B. Determination. The APDAB will determine if

1) the soldier received a full and fair hearing.

2) the evaluation proceedings conformed to current laws and governing regulations.

3) findings and recommendations of the PEB, as changed or modified by the USAPDA are supported by the evidence.

C. Soldier’s response. A soldier may submit a rebuttal to be received by PERSCOM with 10 days of the receipt of the notification letter by APDAB of its findings and recommendations.

VI. FINAL DISPOSITION

Based upon the final decision of USAPDA or APDAB, PERSCOM will issue retirement orders or other disposition instructions including the following:

A. Permanent retirement for physical disability.

B. Placement on the Temporary Disability Retirement List

C. Separation for physical disability with severance pay.

D. Separation for physical disability without severance pay.

C. Return of the soldier to duty when he or she is determined physically fit.

VII QUALIFICATIONS FOR CONTINUATION ON ACTIVE DUTY

A soldier who is found unfit by the PEB for active duty, may request Continuation On Active Duty (COAD). To be considered for COAD, a soldier must be: 

A Found unfit by a PEB because of a disability that was not the result of intentional misconduct nor willful neglect, nor incurred during a period of unauthorized absence.

B. Capable of maintaining one’s self in a normal military environment without adversely effecting one’s health and the health of others and without undue loss of time from duty for medical treatment.

C. Physically capable of performing useful duty in a MOS for which he/she is currently qualified or potentially trainable.

D. Eligible through one of the criteria below:

1. Has 15 years but less than 20 years of total service, or

2. Is qualified in a critical skill or shortage MOS confirmed by PERSCOM, or

3. Disability is the result of combat.

F. Continued on Active Duty.

A soldier COAD under this program must be reevaluated periodically to determine whether further continuance or, conversely, retirement or separation is in the best interest of the Army and soldier.

VIII. DISABILITY RATING

A. Percentage Disability.

When the PEB determines that a soldier has a disability that renders him/her unfit for duty, the PEB must then consider what disability rating the soldier is entitled to receive. If the soldier receives a rating of 0%, 10%, or 20% and has at least 6 months of active duty service, but less than 20 years of active duty service, that soldier is entitled to severance pay.

B. Severance Pay.

The amount of severance pay paid is not related to the percentage of disability. Severance pay is calculated as the sum of 2 months’ basic pay multiplied by the number of combined years of active service and inactive duty training (but not over 12 years).

C. Disability Pay.

A soldier who receives a disability of 30% or more, or a soldier who has 20 or more years of active duty service (regardless of his/her disability ranking), is either permanently or temporarily retired from service. If the soldier has a 30% disability ranking or higher, he/she is entitled to whatever percentage of his/her base pay his/her disability rating entitles him/her to receive.

D. Temporary Disability Retirement List.

A soldier placed on the Temporary Disability Retirement List (TDRL) is temporarily retired and is allowed to collect the pension and retain all benefits. At least every 18 months, the Army will review the soldier’s condition to see if it has improved or worsened. After 5 years, if the soldier is not brought back on to active duty, he/she will be permanently retired or separated with severance pay depending on the final rating. If a soldier on the TDRL is found to be fit for duty within the 5 year time limit, the soldier has the option of coming back on active duty or permanently separating without severance pay. There is no mandatory return to active duty for a soldier coming off the TDRL.

E. Vetarans Administration Processing is Separate.

It is important for the soldier to realize that the Department of Veterans Affairs (VA) has its own disability process independent of the Army. Soldiers will be evaluated by the VA for a rating after separation.

• For additional links, regulations, information on the physical disability system, visit my website at:
  • http://louisvillelaw.com/federal/physical_disability_sep.htm
• For information regarding veterans benefits, visit my web site at:
  • http://louisvillelaw.com/federal/veterans.htm