Ed,
Lets say a healthy 20 year retiree is recalled to active duty. He is sent to Afghanistan where he is hit by an IED and loses both legs. Would he not be eligible for a disability retirement? What about the fact a disability retirement is tax-free? Should he lose that benefit because he was retired prior to being reactivated and sent into harms way?
Mike
As I said Mike, the regulation makes exceptions for grave illnesses or injuries.
AR 635-40
3–2. Presumptions
The following presumptions will apply to physical disability evaluation:
a. Before and during active service.
(1) A Soldier was in sound physical and mental condition upon entering active service except for physical
disabilities noted and recorded at the time of entry.
(2) Any disease or injury discovered after a Soldier entered active service, with the exception of congenital and
hereditary conditions, was not due to the Soldier’s intentional misconduct or willful neglect and was incurred in line of
duty (LD).
(3) If the foregoing presumptions are overcome by a preponderance of the evidence, any additional disability or
death resulting from the preexisting injury or disease was caused by military service aggravation. (Only specific
findings of “natural progression” of the preexisting disease or injury, based upon well-established medical principles
are enough to overcome the presumption of military service aggravation.)
(4) Acute infections and sudden developments occurring while the Soldier is in military service will be regarded as
service-incurred or service-aggravated. Acute infections are those such as pneumonia, active rheumatic fever (even
though recurrent), acute pleurisy, or acute ear disease. Sudden developments are those such as hemoptysis, lung
collapse, perforating ulcer, decompensating heart disease, coronary occlusion, thrombosis, or cerebral hemorrhage. This
presumption may be overcome when a preponderance of the evidence shows that no permanent new or increased
disability resulting from these causes occurred during active military service or that such conditions were the result of
“natural progression” of preexisting injuries or diseases as in
(3), above.
(5) The foregoing presumptions may be overcome only by a preponderance of the evidence, which differs from
personal opinion, speculation, or conjecture. When reasonable doubt exists about a Soldier’s condition, an attempt
should be made to resolve the doubt by further clinical investigation and observation and by consideration of any other
evidence that may apply. In the absence of such proof by the preponderance of the evidence, reasonable doubt should
be resolved in favor of the Soldier.
b. Processing for separation or retirement from active service.
(1) Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is
provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a
physical disability incurred or aggravated in service.
(2) When a Soldier is being processed for separation or retirement for reasons other than physical disability,
continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for
separation or retirement, creates a presumption that the Soldier is fit. An enlisted Soldier whose reenlistment has been
approved before the end of his or her current enlistment, is not processing for separation; therefore, this rule does not
apply. The presumption of fitness may be overcome if the evidence establishes that—
(a)
The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or
4 AR 635–40 • 8 February 2006
rating for a period of time because of disability. There must be a causative relationship between the less than adequate
duty performance and the unfitting medical condition or conditions.
(b)
An acute, grave illness or injury or other significant deterioration of the Soldier’s physical condition occurred
immediately prior to, or coincident with processing for separation or retirement for reasons other than physical
disability and which rendered the Soldier unfit for further duty.
(3) A Soldier previously found unfit but approved for continuation on active duty (COAD) is evaluated according to
chapter 6.
