Free Motion for Summary Judgment - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

No. 07-166C (Judge C.O.C. Miller)

PAUL E. DOLAN Plaintiff, v. THE UNITED STATES Defendant,

PLAINTIFF'S APPENDIX VOLUME 3

August 3, 2007

John A. Wickham, Esq. 32975 Saint Moritz Drive Evergreen CO 80439-6720 (303) 670-3825 Counsel for plaintiff

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APPENDIX TABLE OF CONTENTS

Army Regulation AR 635-100, Personnel Separations: Officer Personnel (1989), with Interim Change IO5 (1993)............................................................................................................36-42 Army Regulation AR 135-175, Army National Guard and Army Reserve: Separation of Officers (1987)............................................................................................43-45 Army Regulation AR 635-40, Personnel Separations: Physical Evaluation for Retention, Retirement or Separation (1990).............................................................................................................46-76 Army Regulation AR 40-501, Medical Services: Standards of Medical Fitness (2004) [prior issue unavailable, revisions not relevant]...............................................................77-91 Department of Defense Instruction DODI 1332.18, Separation or Retirement for Physical Disability (1996).......................92-98 Department of Defense Instruction DODD 1332.38, Physical Disability Evaluation (1996)................................................99-102 Army Regulation AR 40-400, Medical Services: Patient Administration (2006) [prior issue unavailable, revisions not relevant]..........................................................103-106 Federal Statutes, Title 10 § 1074. Medical and dental Care for members........................................................................107-109 § 1201. Regulars and members on active duty for more than 30 days; [disability] retirement...................................................................................................110-111 § 1202. Regulars and members on active duty for more than 30 days; temporary disability retired list...........................................................................................112 § 1203. Regulars and members on active duty for more than 30 days; separation.................113-114 § 1214. Right to full and fair hearing.............................................................................................114

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APPENDIX TABLE OF CONTENTS (continued) Federal Statutes, Title 10 § 10209. Regular and reserve components: discrimination prohibited..........................................115

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Headquarters Department of the Army Washington, DC 28 February 1987

Army Regulation 135­175
Effective 28 February 1987 Army National Guard and Army Reserve

Separation of Officers
it compatible with the Army electronic publishing database. No content has been changed. Summary. This regulation provides policy, criteria, and procedures for the separation of officers of the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR), except for officers serving on active duty or active duty training exceeding 90 days. Applicability. (See para 1­2) Proponent and exception authority. The proponent agency of this regulation is the Office of the Deputy Chief of Staff for Personnel. Army management control process. Not applicable. Supplementation. Supplementation of this regulation and establishment of forms other than DA Forms are prohibited without prior approval from the Commander, U.S. Army ZAP­P, 9700 Page Boulevard, St. Louis, MO 63132­5200. Interim changes. Interim changes to this regulation are not official unless they are authenticated by The Adjutant General. Users will destroy interim changes on their expiration dates unless sooner superseded or rescinded. Suggested improvements. Users are invited to send comments and suggested improvements on DA Form 2028 (Recommended Changes to Publications and Blank Forms) directly to Commander, U. S. Army ZAP­P, 9700 Page Boulevard, St. Louis, MO 63132­5200. Distribution. Active Army, C; USAR, A; ARNG, A.

History. The original form of this regulation was first published on 22 February 1971. Since that time, changes have been issued to amend the original. As of 15 May 1987, permanent Changes 1 through 19 remain in effect. This UPDATE printing incorporates all of those changes directly into the body of text. This publication has been reorganized to make

Contents

(Listed by paragraph and page number)

Chapter 1 General Provisions, page 1 Purpose · 1­1, page 1 Scope · 1­2, page 1 Policy · 1­3, page 1 References · 1­3.1, page 1 Explanation of abbreviations and terms · 1­4, page 1 Administrative separation proceedings · 1­5, page 1 Type of discharge certificate to be furnished · 1­6, page 1 Effective date of separation · 1­7, page 2 Notification of separation · 1­8, page 2 Mentally incompetent · 1­9, page 2 Orders · 1­10, page 2 Notification of discharge to Selective Service System · 1­11, page 2 Records disposition · 1­12, page 2 Appeals · 1­12.1, page 3 Statutory authority · 1­13, page 3

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meet the medical fitness standards at the time of appointment and who fail to resign (chap 6, sec V) may be recommended for involuntary separation. This action will be taken when the commander or PMS determines that the best interest of the Government and the individual can be served by his or her discharge. If the disqualification was for HTLV-III positivity 502, paragraph 2­39m (a disqualification that became effective on 1 November 1985), the officer will be involuntarily separated. b. An officer of a Reserve Component, regardless of length of service, who reports to AD or ADT for initial entry training on or after 1 October 1985, is confirmed positive for the HTLV-III virus or antibody 501, paragraph 2­39m, and who fails to resign (chap 6, sec III) will be involuntarily separated. c. If the basis for an involuntary separation under this paragraph is confirmed positive for the HTVL-III virus or antibody, an honorable characterization of service will be given. 2­14. In the interest of National security Existence of acts or behavior not clearly consistent with the interests of National security requires the involuntary separation of an officer (AR 604­10). Section III Initiation and Processing of Involuntary Separation Actions 2­15. When involuntary separation action is appropriate No person has an inherent right to continue service as an officer. The privilege of service is his only as long as he performs satisfactorily. Responsibility for leadership and example require effective performance of assigned duties and exemplary conduct at all times. The Army has no place for officers who cannot meet these requirements, and their involuntary separation is essential. In view of the rapidity with which hostilities can now occur and the attendant likelihood that many officers may be called to active duty on short notice, the same standards of efficiency and conduct apply to officers of all Reserve components. a. Every officer deserves a fair chance to demonstrate his or her capabilities. When an officer shows ineffective tendencies, especially if they are due to inexperience, that officer will, when practicable, be given another chance under another commander. At the same time, however, the officer's ineffectiveness should be systematically recorded in documents that are specific as to the period each covers, the duties observed, and the defects noted. Any officer who has been given a fair chance and has failed to become an effective officer will be considered for involuntary separation to ensure that his ineffectiveness is not permitted to continue to affect the Army adversely. b. Recommendation for involuntary separation under this regulation cannot be based on empty generalities and vague impressions. It is necessary to establish with some precision the reasons why an officer is considered ineffective. Basically, this officer is one who does not get acceptable results. Inefficiency is a relative matter, hence a finite definition of the ineffective officer can never be reached. Many ineffective officers are attractive, handsome, decent, educated, honorable, intelligent and generous, and yet ineffective. It is perfectly proper to give an officer credit for his good qualities in the same letter or efficiency report which reveals his ineffectiveness as an officer. Specific reasons for failure should be documented with concrete examples in their support. 2­16. Recommendation for involuntary separation a. Recommendation for involuntary separation may be originated by one of the following: (1) A proper agency at HQDA regardless of an officer's assignment. (2) A commander with respect to a member of that command. (3) A duly constituted selection board, operating under official letter of instruction (LOI), in which the board may recommend individuals who should be involuntarily separated. (4) The Professor of Military Science (PMS) responsible for the institution where an officer is pursuing a degree may start involuntary separation action. The PMS action applies to officers commissioned through the Early Commissioning Program (ECP) and the Commissioning of Completion Students Program (CCSP). The PMS will send the action for CCSP personnel to OPR­DE, 9700 Page Boulevard, St. Louis, MO 63132­5200. For ECP personnel, the PMS will send the action to the proper Reserve Forces commander. b. HQDA agencies and selection board approving authorities will send their recommendations for involuntary separation directly to the proper area commander. Commanders of officers assigned to units will send their recommendations through channels to the proper area commander. c. When the Cdr, ARPERCEN determines that sufficient basis exists to initiate involuntary separation action for officers under the jurisdictional control of that center, the procedures in paragraph 2­17e and f(1) and (2) will be followed. If the where abouts of the officer are unknown or unascertained, or if the officer refuses to accept or respond to the notification, the Cdr, ARPERCEN is authorized to appoint a board of officers and follow provisions of paragraphs 2­17g and 2­20. If the officer elects a hearing before a board of officers, the following actions will apply: (1) When the circumstances do not require Army investigative processes (AR 195­2), the recommendation for

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involuntary separation, together with correspondence, statements, records, and similar related documents will be forwarded to the area commander in whose area the officer involved is currently residing. (2) When circumstances indicate the need for Army investigative processes (AR 195­2), the recommendation for involuntary separation, together with correspondence, statements, records, and similar related documents will be forwarded to the area commander in whose area the incident occurred or to the responsible oversea commander requesting appropriate investigation. The area commander in whose area the incident occurred will review the report of other documents furnished by the Cdr, ARPERCEN and, except as otherwise provided in paragraph 2­8b and c, determine appropriate action (para 2­17). d. Recommendations will clearly state the reasons for involuntary separation and will be supported by all documentary and physical evidence which can be reasonably included. With the exception of business entries and official records and reports, such as efficiency reports and health records, which are not made with a view to prosecution (see Manual for Courts-Martial, 1984, M.R.E. 803 (8)), all statements submitted, including reports of the investigation, will be under oath or affirmation unless the witness is dead, insane, or missing; or the exigencies of the service preclude obtaining a statement in affidavit form. Evidence to support a recommendation for involuntary separation must be able to stand on its own merits, adhering to one standard (substandard performance or moral or professional dereliction). Documents must be legible and lend themselves to reproduction. Copies reproduced by the thermofax process or other means which are barely legible, and nonpermanent-type reproduction will not be used. 2­17. Initial actions by area commander The following actions may be taken by the area commander on recommendation for involuntary separation received from commanders or appropriate agencies at HQDA: a. The case may be returned for further evidence or a recommendation as to further action. b. If sufficient basis exists, the area commander may disapprove the recommendation, close the case, and return it to the initiating commander or appropriate agency at HQDA. (See para 2­43 on homosexuality cases.) c. If considered necessary and desirable, the area commander may appoint or direct the appointment of an investigating officer (AR 15­6). d. On receipt of the investigating officer's report, the area commander may disapprove the recommendation, close the case, and return it to the initiating commander or appropriate agency at HQDA. e. If it is determined that sufficient basis exists to initiate involuntary separation action, the area commander will (if the whereabouts of the officer concerned is known or may be ascertained by 133)-- (1) Notify the officer concerned of the requirement to show cause for retention and will give the individual the reason for this requirement. (2) Advise the officer in the above notification, if appropriate, that he may elect to submit a resignation in lieu of involuntary separation (sec IV and V, chap 6); or, if eligible, elect transfer to the Retired Reserve (para 2­3d); or to have the case acted on by a board of officers. (3) Advise the officer of the requirement to acknowledge receipt of the above notification within 15 days of receipt, indicating his election on one of the above options. (4) When determined necessary by notifying command, notification will be sent to member by certified mail, return receipt requested. f. On securing the acknowledgement of receipt from the officer, notified in accordance with eabove, the area commander will, if the officer-- (1) Elects transfer to the Retired Reserve and is otherwise eligible--process the officer's request. (2) Submits a resignation in lieu of involuntary separation--forward the resignation and related correspondence to HQDA (para 2­8a). (3) Elects appearance before a board or elects board proceedings but waives appearance--take necessary steps to appoint the board as prescribed in this regulation and in AR 15­6. g. If the whereabouts of the officer are unknown and unascertained after complying with the procedures prescribed in AR 135­133; or if the officer refuses to accept or respond to the notification required by e above, the area commander will take necessary steps to appoint a board of officers, as prescribed in this regulation and in AR 15­6. A copy of the notification and either a post office receipt confirming delivery or the returned unopened envelope showing mail was refused, unclaimed, or not delivered will become part of the board exhibits. This board may proceed in the officer's absence without according the privileges listed in paragraph 2­19, except that counsel will be appointed to represent him in his absence. h. New allegations received by the area commander, supporting a recommendation for involuntary separation which has already been referred to a board of officers will, if the case has not been heard, be referred to the board of officers for consideration. If the case has already been heard and is finally closed favorably to the officer, appropriate action to initiate new proceedings may be taken, subject to paragraph 1­5. 2­18. Investigation of homosexuality a. A commanding officer who receives information that an assigned officer may require separation under the criteria

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*Army Regulation 635­40
Effective 15 September 1990 Personnel Separations

Physical Evaluation for Retention, Retirement, or Separation
because of physical disability. It updates policy and procedures resulting from the Department of Defense Directive 1332.18 dated February 25, 1986; the reorganization of the Physical Disability Agency; the implementation of streamlined procedures for case processing; and the passage of Public Law 99­661 as it relates to disability processing of soldiers in the Reserve Components. Applicability. This regulation applies to the Active Army, the Army National Guard, and the U.S. Army Reserve. Proponent and exception authority. Not Applicable. Army management control process. This regulation is subject to the requirements of AR 11­2. It contains internal control provisions but does not contain checklists for conducting internal control reviews. These checklists are being developed and will be published at a later date. Supplementation. Supplementation of this regulation and establishment of command and local forms are prohibited without approval from HQDA (DAPE­MP). Suggested Improvements. The proponent agency of this regulation is the Office of the Deputy Chief of Staff for Personnel. Users are invited to send comments and suggested improvements on DA Form 2028 (Recommended Changes to Publications and Blank Forms) directly to Commander, U.S. Army Physical Disability Agency, ATTN: TAPD­OEA, Forest Glen Section-- WRAMC, Washington, DC 20307­5001. Distribution. Distribution of this publication is made in accordance with the requirements on DA Form 12­09­E, block number 2266, intended for command level A for the Active Army, the Army National Guard, and the U.S. Army Reserve.

History. This UPDATE printing publishes a revision of this publication. This publication has been reorganized to make it compatible with the Army electronic publishing database. No content has been changed. Summary. This regulation governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties

Contents

(Listed by paragraph and page number)

Chapter 1 Introduction, page 1 Purpose · 1­1, page 1 References · 1­2, page 1 Explanation of abbreviations and terms · 1­3, page 1 Ineligibility for processing · 1­4, page 1 Chapter 2 Responsibilities and Functions, page 1 Section I Responsible Individuals, page 1 Secretary of the Army (SA) · 2­1, page 1 Deputy Chief of Staff for Personnel (DCSPER) · 2­2, page 1 Commander, U.S. Total Army Personnel Command (Commander PERSCOM) · 2­3, page 1 CG, USAPDA · 2­4, page 1 The Surgeon General (TSG) · 2­5, page 1 The Judge Advocate General (TJAG) · 2­6, page 1 Commanding Generals of Health Services Command (HSC); 7th Medical Command/Europe (7 MEDCOM/EUR); and 18th Medical Command (18 MEDCOM) · 2­7, page 1 Commander, MTF · 2­8, page 1 Unit commander · 2­9, page 1

Section II Related Boards, page 2 Board Elements · 2­10, page 2 Army Physical Disability Appeal Board (APDAB) · 2­11, page 2 The Army Board for Correction of Military Records (ABCMR) · 2­12, page 2 Army Disability Rating Review Board (ADRRB) · 2­13, page 2 Chapter 3 Policies, page 2 Standards of unfitness because of physical disability · 3­1, page 2 Presumptions · 3­2, page 3 Conditions existing before active military service · 3­3, page 3 LD decisions · 3­4, page 3 Use of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) · 3­5, page 4 Length of hospitalization · 3­6, page 4 Retaining soldiers on active duty after scheduled nondisability retirement or discharge date · 3­7, page 4 Counseling provided to soldier · 3­8, page 4 The TDRL · 3­9, page 4 COAD by soldiers unfit because of physical disability · 3­10, page 4 Limitation on appearance by soldiers · 3­11, page 5 Findings and recommendations of agencies reviewing disability cases · 3­12, page 5 Special rules applicable to general and medical corps officers · 3­13, page 5

*This regulation supersedes AR 635­40, 13 December 1985.

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1­1. Purpose This regulation establishes the Army Physical Disability Evaluation System according to the provisions of chapter 61, title 10, United States Code (10 USC 61) and Department of Defense Directive (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. 1­2. References Required and related publications are listed in appendix A. Prescribed and referenced forms are also listed in appendix A. 1­3. Explanation of abbreviations and terms Abbreviations and special terms used in this regulation are explained in the glossary. 1­4. Ineligibility for processing a. Section 1217, title 10, United States Code (10 USC 1217) excludes cadets of service academies from eligibility for disability benefits under 10 USC 61. However, USMA cadets may be entitled to compensation administered by the Department of Veterans Affairs (VA). Section 101(21)(D), title 38, United States Code (38 USC 101(21)(D)) includes service as a cadet at the United States Military Academy (USMA) within the definition of active duty for purposes of entitlement to VA compensation. b. Reserve Officers' Training Corps (ROTC) cadets are not eligible for processing under this regulation. Senior ROTC cadets may be eligible for VA disability benefits under section 101(22)(D), title 38, United States Code (38 USC 101(22)(D)) as explained above for USMA cadets.

based on decisions of the Commanding General, U.S. Army Physical Disability Agency(CG, USAPDA) or higher authority (chap 4 and app E). c. Notify the VA of all individuals being separated or retired from the Army for physical disability. d. Coordinate, control, and manage all soldiers on the Temporary Disability Retired List (TDRL) 2­4. CG, USAPDA The CG, USAPDA, under the operational control of the Commander, PERSCOM, will operate the Army Physical Disability Evaluation System, to include-- a. Interpreting and implementing policies coming from higher authority. b. Developing the policies, procedures, and programs of the system. c. Coordinating with other military departments to ensure applicable laws, policies, and directives are interpreted uniformly. (A uniform interpretation is required to ensure that a soldier of the Army will be granted substantially the same benefits as a member of another Service under similar conditions.) d. Commanding and managing the subordinate elements of the USAPDA. e. Reviewing Physical Evaluation Board (PEB) proceedings to ensure that soldiers are given uniform and fair consideration under applicable laws, policies, and directives. f. Making the final decision whether a soldier is unfit because of physical disability except when such decisions are reserved to higher authority. Included as higher authority are the Office of the Secretary of the Army (OSA) and the Office of the Secretary of Defense (OSD). g. Determining percentage rating and disposition. 2­5. The Surgeon General (TSG) TSG will establish and interpret medical standards for retaining soldiers on active duty (see AR 40­3 and AR 40­501). 2­6. The Judge Advocate General (TJAG) The TJAG will-- a. Interpret laws and regulations governing the Army Physical Disability Evaluation System. b. Train and provide sufficient legal counsel to represent soldiers appearing before a PEB. c. Train Army attorneys in disability law. 2­7. Commanding Generals of Health Services Command (HSC); 7th Medical Command/Europe (7 MEDCOM/EUR); and 18th Medical Command (18 MEDCOM) The commanding generals of the Health Services Command (HSC); the 7th Medical Command/Europe (7 MEDCOM/EUR); and the 19 Medical Command (19 MEDCOM) will-- a. Ensure that Army medical treatment facilities (MTFs) under their control fulfill their responsibilities in connection with the Army Physical Disability Evaluation System as outlined in AR 40­3 and this regulation. b. Appoint MTFs responsible for accomplishing periodic medical evaluation for TDRL members (chap 7). 2­8. Commander, MTF The commander, MTF will-- a. Provide a thorough and prompt evaluation when a soldier's medical condition becomes questionable in respect to physical ability to perform duty. b. Appoint a Physical Evaluation Board Liaison officer (PEBLO) to counsel soldiers undergoing physical disability processing. c. Ensure medical evaluation board (MEBD) proceedings referred to the PEB are complete, accurate, and fully documented as outlined in AR 40­3, chapter 7, and chapter 4 of this regulation. 2­9. Unit commander The unit commander will--

Chapter 2 Responsibilities and Functions
Section I Responsible Individuals 2­1. Secretary of the Army (SA) The SA will prescribe regulations to carry out the provisions of 10 USC 61.Unless otherwise specified in this regulation, the SA reserves all powers, functions, and duties of the Army Physical Disability Evaluation System. 2­2. Deputy Chief of Staff for Personnel (DCSPER) The DCSPER has overall Army Staff responsibility for the Army Physical Disability Evaluation System. Policy guidance will be provided by the Director of Military Personnel Management (DMPM), Office of the Deputy Chief of Staff for Personnel (ODCSPER). 2­3. Commander, U.S. Total Army Personnel Command (Commander PERSCOM) The commander, PERSCOM will-- a. Operate the Army Physical Disability Evaluation System under the general staff supervision of the DCSPER. b. Accomplish final administrative actions in processing physical disability cases; issue needed orders or other instructions for the SA,

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(2) Nowithstanding the above, when a soldier enters the military with a waiver for a medical condition or physical defect, and the condition represents a decided medical risk which would probably prejudice the best interests of the Government were the soldier to remain in military service, separation without benefits may be appropriate, if initiated within 6 months of initial entry on active duty. Entry physical standards will be used in separating individuals with pre-existing medical conditions. Such cases will be referred to a PEB to determine if the pre-existing condition has been serviceaggravated. 3­2. 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 solider whose reenlistment has been approved before the end of his or her current enlistment, is not processing for separation; therefore, this rule does not apply. The presumption of fitness may be overcome if the evidence establishes that-- (a) The soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.

(b) An acute, grave illness or injury or other significant deterioration of the soldier's physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty. (3) A soldier previously found unfit but approved for continuation on active duty (COAD) is evaluated according to chapter 6. 3­3. Conditions existing before active military service a. According to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service. (1) Examples of these conditions are as follows: (a) Scars. (b) Fibrosis of the lungs. (c) Atrophy following disease of the central or peripheral nervous system. (d) Healed fractures. (e) Absent, displaced, or resected organs. (f) Supernumerary parts. (g) Congenital malformations and hereditary conditions (h) Similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service. (2) Likewise, manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service. (3) Manifestations of communicable disease within less than the minimum incubation period after entry on active service will be accepted as proof of inception prior to military service. b. Standard in-service medical and surgical treatment reducing the effect of the disease or other conditions incurred prior to entry into military service does not constitute service aggravation unless the treatment was required to relieve disability that had been aggravated by military service. c. Unexpected adverse effects, over and above known hazards, directly attributable to treatment, anesthetic, or operation performed or administered for a disease or medical condition existing before entry on active duty, may be considered service aggravation. d. For separation guidance on non-service aggravated EPTS conditions when a soldier requests waiver of referral to a PEB, see chapter 5. 3­4. LD decisions a. Under the laws governing the Army Physical Disability Evaluation System, soldiers who sustain or aggravate physically unfitting disabilities must meet the following LD criteria to be eligible to receive retirement and severance pay benefits. (1) The disability must have been incurred or aggravated while the soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. b. LD decisions are reached according to policies and procedures prescribed in AR 600­8­1, chapters 39, 40, and 41. Copies of LD decision, DA Form 2173 (Statement of Medical Examination and Duty Status), or DD Form 261(Report of Investigation--Line of Duty and Misconduct Status) must be included in the official records of the case. When a board or council has substantial evidence, however, showing that a prior decision may be incorrect for any reason, they must include such evidence in the case record and request PERSCOM(TAPC­PED­S) to review the LD determination before final disposition of disability processing at HQDA level (para 4­19g). c. In certain categories of activities, the Deputy Commander, PEB president, or alternate president have the authority to make

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findings of "in line of duty, not due to own misconduct" when no LD investigation has been completed and specific criteria have been met (para 4­19g). 3­5. Use of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) a. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the soldier is physically unfit for duty. Under the provisions of 10 USC 61 these ratings are assigned from the VASRD. b. Special guidance concerning Army use of the VASRD, as well as modifications and exceptions to it as prescribed by DODD 1332.18, are set forth in appendix B of this regulation. c. The fact that a soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. d. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Any non-ratable defects or conditions will be listed in item 8 of DA Form 199, but will be annotated as non-ratable. 3­6. Length of hospitalization Providing definitive medical care to active duty soldiers requiring prolonged hospitalization who are unlikely to return to active duty is not within the DA mission. The time at which a soldier should be processed for disability retirement or separation must be decided on an individual basis. The interest of both the Army and the soldier must be considered. A soldier may not be retained or separated solely to increase retirement or separation benefits.Soldiers who are medically unfit and not likely to return to duty should be processed for disability retirement or separation when it is decided that they have attained optimum hospital improvement. 3­7. Retaining soldiers on active duty after scheduled nondisability retirement or discharge date A soldier whose normal scheduled date of nondisability retirement or separation occurs during the course of hospitalization or disability evaluation may, with his or her consent, be retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system. a. Officers and warrant officers on extended active duty may be retained on active duty according to the provision of AR 635­100, chapter 3. b. Enlisted soldiers on extended active duty may be retained on active duty according to the provisions of AR 635­200, chapter 1. c. Soldiers in the Reserve Components (other than Active Guard/ Reserve)(AGR)) may be retained according to the provisions of AR 135­381. d. Reserve Component soldiers serving on AGR status will be retained on active duty as prescribed in AR 635­200. 3­8. Counseling provided to soldier a. PEBLO counseling. The appointed PEBLO at the MTF is responsible for counseling soldiers (or the next of kin or legal guardian in appropriate cases) concerning their rights and privileges at each step in disability evaluation, beginning with the decision of the treating physician to refer the soldier to a MEBD and until final disposition is accomplished. For this purpose, the MTF commander will name an experienced, qualified officer, noncommissioned officer (NCO), or civilian employee as the PEBLO. At least one additional qualified officer, NCO, or civilian employee will be

designated as alternate PEBLO. Only personnel whose duties will not conflict with their counseling responsibilities will be selected. The MTF commander will notify the recorder of the applicable PEB, of the name and telephone number of the PEBLO and alternate PEBLO. PEBLOs will use the Disability Counseling Guide (app C) to assist them in providing thorough counseling. Counseling will be documented(para 4­20d). Counseling will cover as a minimum, the following areas: (1) Legal rights (including the sequence of and the nature of disability processing). (2) Effects and recommendations of MEBD and PEB findings. (3) Estimated disability retired or severance pay (after receipt of PEB findings and recommendations). (4) Probable grade upon retirement. (5) Potential veteran's benefits. (6) Recourse to and preparation of rebuttals to PEB findings and recommendations. (7) Disabled Veterans Outreach Program (DVOP). (8) Post-retirement insurance programs and the Survivor Benefit Plan(SBP). b. Legal counseling. Counseling by the appointed legal counsel is provided when the soldier requests a formal hearing. 3­9. The TDRL a. The TDRL is used in the nature of a "pending list". It provides a safeguard for the Government against permanently retiring a soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit. Conversely, the TDRL safeguards the soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. b. Requirements for placement on the TDRL are the same as for permanent retirement. The soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation. The disability must be rated at a minimum of 30 percent or the soldier must have 20 years of service computed under section 1208, title 10, United States Code (10 USC 1208). In addition, the condition must be determined to be temporary or unstable. c. A soldier who is determined to be physically fit will not be placed on the TDRL regardless of the severity of the physical defects or the fact that they might become unfitting were the soldier to remain on active duty for a period of time. 3­10. COAD by soldiers unfit because of physical disability a. Headquarters, Department of the Army (HQDA) may defer the disposition of a soldier who, although unfit because of physical disability, can still serve effectively with proper assignment limitations. The soldier must consent to being deferred. b. A soldier COAD according to the provisions in chapter 6 must be unfit because of physical disability. The physical disability must be a basically stable condition or one for which accepted medical principles show slow progression. The soldier must be able to maintain himself or herself in a military environment without jeopardizing individual health or the health of others. The soldier must not require an excessive amount of medical care. c. A soldier who is unfit because of physical disability will not be COAD solely to increase benefits. He or she will not be COAD unless his or her retention is justified as being of value to the Army. d. HQDA will reevaluate soldiers approved for COAD when-- (1) An enlisted soldier's term of service expires during the period for which continuance was approved and the soldier requests reenlistment (para 6­17d). (2) Soldier requests extension of continuance on active duty (para 6­13e). e. When COAD is approved, the soldier remains liable to complete any service obligation he or she has incurred unless the disqualifying condition progresses to a point wherein the soldier becomes unable to perform within established limitations.

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f. At the time of final retirement or separation, the soldier will be referred to a MEBD and PEB (para 6­14). 3­11. Limitation on appearance by soldiers A soldier or his or her representative will not be permitted to appear before the informal PEB, USAPDA (during case review), the APDAB, or the ADRRB. 3­12. Findings and recommendations of agencies reviewing disability cases Review and appeal activities are bound by the regulations under which adjudicative activities function. A rare and unusual case may occur to which current regulations do not apply. If so, refer the case through channels to the OSA with a recommendation for disposition. 3­13. Special rules applicable to general and medical corps officers a. General officers and medical corps officers will not be found to be unfit by reason of physical disability if they can be expected to perform satisfactorily in an assignment appropriate to their grade, qualifications, and experience. b. General officers and medical corps officers who are processing for retirement by reason of age or length of service may not be retired for physical disability unless the initial unfitness determination of the SA is approved by the Secretary of Defense on the recommendation of the Assistant Secretary of Defense (Health Affairs) (ASD(HA)). c. General officers and medical corps officers not processing for retirement by reason of length of service at the time of their referral into the disability system, may not be retired or separated for physical disability until a recommendation therefore by the SA is approved by the ASD(HA). d. One copy of all retirement orders issued in the case of general officers retired because of physical disability will be submitted to ASD(HA). 3­14. Factors governing time of processing The point in time for referral of a soldier for disability separation or retirement is determined on an individual basis. Normally, soldiers who are not likely to return to duty will be processed as soon as this probability is ascertained. a. Separation or retirement should normally occur within 20 days of the date of the final determination of unfitness by the SA. However, soldiers are entitled to use accrued leave in excess of that which cannot be sold back to the Government. b. Soldiers having a prognosis of imminent death shall be evaluated and processed in a comparable manner and procedural sequence to that of all other soldiers. No procedures will be circumvented or omitted, to include LD determination in the interest of timely processing.

the charge for trial to a court-martial that cannot adjudge such a sentence. b. Civil court action. 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. 4­2. Soldiers with suspended sentences A soldier may not be referred for, or continue, disability processing if under sentence of dismissal or punitive discharge. If the sentence is suspended, the soldier's case may then be referred for disability processing. A copy of the order suspending the sentence must be included in the soldier's records. If action to vacate the suspension is started after the case is forwarded for disability processing, the PEB serving the area must be promptly notified to stop disability processing. Disability processing may resume if the commander decides not to vacate the suspension. 4­3. Enlisted soldiers subject to administrative separation a. Except as provided below, 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. b. If the case comes within the limitations above, the commander exercising general court-martial jurisdiction over the soldier may abate the administrative separation. This authority may not be delegated. A copy of the decision, signed by the general court-martial convening authority (GCMCA), must be forwarded with the disability case file to the PEB. A case file may be referred in this way if the GCMCA finds the following: (1) The disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions. (2) Other circumstances warrant disability processing instead of alternate administrative separation. c. A soldier being considered for separation because of unsatisfactory performance (AR 635­200, chap 13), must be referred for disability processing upon approved recommendation of a MEBD (AR 635­200, para 1­35a). 4­4. Commissioned or warrant officers who may be separated under other than honorable conditions a. 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. b. Commanders exercising general court-martial authority will ensure that the foregoing actions processed together are properly identified and cross-referenced. The administrative separation will be forwarded to the Commander, PERSCOM, ATTN: TAPC­OPP­M, Alexandria, VA 22332­0418. c. The Commander, PERSCOM, will refer the entire file, including both courses of action, to the Office of the Secretary of the Army, ATTN: SAMR­RB, Washington DC 20310­3073 for necessary review. The SA will decide the proper disposition of the case. 4­5. Soldiers absent without leave (AWOL) A soldier may not be processed through the Army Physical Disability Evaluation System unless he or she is under military control. The soldier must be available to be notified of the findings of the PEB and to indicate concurrence or nonconcurrence with the PEB findings and recommendations. If AWOL, the soldier's case file may not be sent to a PEB. If determined AWOL after the soldier's case file has been referred, the PEB must be promptly notified in order to suspend processing. If the soldier returns within 10 days, the PEB must be notified so that processing may resume. Any substantial change in the soldier's condition during a period of AWOL must be

Chapter 4 Procedures
Section I Eligibility for Disability Evaluation 4­1. Soldiers charged with an offense a. Uniform Code of Military Justice (UCMJ) action. The case of 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, may not be referred for, or continue, disability processing unless-- (1) The investigation ends without charges. (2) The officer exercising proper court-martial jurisdiction dismisses the charges. (3) The officer exercising proper court-martial jurisdiction refers

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recorded by an addendum to the original MEBD or by a new MEBD and furnished to the PEB. Section II Initiation of Medical Evaluation 4­6. Referral by HQDA The Commander, PERSCOM, upon recommendation of TSG, may refer a soldier to the responsible MTF for medical evaluation when a question arises as to the soldier's ability to perform the duties of his or her office, grade, rank, or rating because of physical disability. 4­7. Referral by commanders of MTFs Commanders of MTFs who are treating soldiers in an assigned, attached, or outpatient status may initiate action to evaluate the soldier's physical ability to perform the duties of his or her office, grade, rank, or rating. 4­8. Referral by commanders When a commander believes that a soldier of his or her command is unable to perform the duties of his or 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 or her duties. DD Form 689 (Individual Sick Slip) may be used for such referral (AR 600­6). Commanders of Reserve units not on active duty will be guided by AR 40­501 and chapter 8 of this regulation. Section III Medical Processing Related to Disability Evaluation 4­9. Medical examination The MTF commander having primary medical care responsibility will conduct an examination of a soldier referred for evaluation. The commander will advise the soldier's commanding officer of the results of the evaluation and the proposed disposition. If it appears the soldier is not medically qualified to perform duty, the MTF commander will refer the soldier to a MEBD. 4­10. The MEBD MEBD's are convened to document a soldier's medical status and duty limitations insofar as duty is affected by the soldier's status. A decision is made as to the soldier's medical qualification for retention based on the criteria in AR 40­501, chapter 3. If the MEBD determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB. For MEBD's rules for documentation, recommendations, and disposition of the evaluated soldier, see AR 40­3, chapters 7 and 8. 4­11. Narrative summary (NARSUM) The NARSUM to the MEBD is the heart of the disability evaluation system.Incomplete, inaccurate, misleading, or delayed NARSUMs may result in injustice to the soldier or to the Army. a. Physicians who prepare cases for the MEBD and PEB should use the VA Physician's Guide for Disability Evaluation Examinations (published by the VA)to describe physical defects. This helps to ensure consistency in reporting similar conditions and assists the boards of the disability system in their review and evaluation process. (See AR 40­3, chapter 8.) b. In describing a soldier's conditions, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service. The history of the soldier's illness, objective findings on examination, results of X-ray and laboratory tests, reports of consultations, response to therapy, and subjective conclusions with rationale must be addressed. c. A correlation must be established between the soldier's medical defects and physical capabilities. (This is important when a chronic condition is the basis for referral to a PEB and no change in

severity of the condition has occurred or when referral of the case to a PEB appears controversial.) d. The date of onset of a medical impairment may be questionable because of relatively short military service and the nature of the impairment, for example, a mental disease. If so, the NARSUM should address the results of inquiry into the pre-service background (family, relatives, medical, and community) of the soldier in sufficient detail to overcome substantive question concerning the date of onset. e. When a soldier is diagnosed with a mental disorder, the NARSUM must include a statement indicating whether the soldier is mentally competent for pay purposes and capable of understanding the nature of, and cooperating in, PEB proceedings. f. NARSUMs will not reflect a conclusion of unfitness. Therefore, diagnoses must not be qualified by such terms as "unfitting", "disqualifying", "ratable", "not ratable". g. When disclosure of medical information would adversely affect the soldier's physical or mental health, the NARSUM should include a statement to that fact. h. The NARSUM should include the date of the physical examination conducted for purposes of physical disability evaluation. i. MEBD proceedings from other than Army MTF's must be forwarded through the designated Army facility (AR 40­3, chap 7). 4­12. Counseling soldiers who have been evaluated by a MEBD a. The PEBLO will advise the soldier of the results of the MEBD. The soldier will be given the opportunity to read and sign the MEBD proceedings. If the soldier does not agree with any item in the medical board report or NARSUM, he or she will be advised of appeal procedures. b. The decisions below are exclusively within the province of adjudicative bodies. Neither the PEBLO nor the attending medical personnel will tell the soldier that-- (1) The soldier is medically or physically unfit for further military service. (2) The soldier will be discharged or retired from the Army because of physical disability. (3) A given percentage rating appears proper. (4) A LD decision is final (unless final approval has been obtained according to AR 600­8­1). 4­13. Referral to a PEB a. The MEBD will recommend referral to a PEB those soldiers who do not meet medical retention standards. Those who apply for COAD under the provisions of chapter 6 will be included. Do not refer soldiers to a PEB who request discharge under the provisions of chapter 5. A soldier being processed for nondisability separation will not be referred to a PEB unless the soldier has medical impairments that raise substantial doubt as to his or her ability to continue to perform the duties of his or her office, grade, rank, or rating.Soldiers previously found unfit and retained in limited assignment duty status under chapter 6, or a previous authority, will be referred to a PEB. b. A soldier may provide additional information to the MTF commander to forward to the PEB. The information may be from the unit commander, supervisor, or other persons who have knowledge regarding the effect the condition has on the soldier's ability to perform the duties of the office, grade, rank, or rating. c. Personnel processing actions for soldiers referred to a PEB will be according to appendix E. 4­14. Psychiatric and spinal cord injury patients requiring continuing hospitalization a. AR 40­3 provides for transfer of psychiatric and spinal cord injury patients to a VA medical facility. (1) Psychiatric patients requiring continuing hospitalization may be transferred after completion of MEBD action. To ensure timely processing, the MEBD proceedings must be referred to the PEB immediately after transfer of the patient.

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(2) Spinal cord injury patients requiring continuing hospitalization will be expeditiously transferred to the VA Spinal Cord Injury Center, regardless of whether the MEBD is completed. The MTF that has responsibility for patients in the particular VA Spinal Cord Injury Center will coordinate the completion and processing of the MEBD. b. The PEBLO of the MTF that has responsibility for the completion of the MEBD will provide disability counseling to the soldier or the soldier's next-of-kin when the soldier is mentally incompetent. The PEBLO will also notify the Installation Retirement Services Officer of the soldier's transfer to the VA hospital; and in cases of mental incompetence, provide the RSO the name and address of the next of kin in order to coordinate counseling on SBP as required under section 1455, title 10, United States Code (10 USC 1455). 4­15. Action following approval of MEBD report The MTF commander will notify the unit commander of the planned referral of a soldier to a PEB and obtain from the commander the written statement described in paragraph e below. If further action is not barred, the original and two copies of the MEBD proceedings and allied documents described below, as applicable, will be forwarded to the PEB. a. DA Form 5889­R (PEB Referral Transmittal Document). This document serves as the forwarding memorandum. It identifies the documents forwarded and provides unit and home addresses and telephone numbers for the PEB to contact the soldier as required. DA Form 5889­R will be locally reproduced on 81/2 by 11 inch paper. A copy of the form for reproduction purposes is located at the back of this regulation. b. Documents submitted by soldier to accompany MEBD as evidence of physical ability to adequately perform military duties (letters, efficiency reports, or personal statements). c. DA Form 3947 (Medical Evaluation Board Proceedings) with SF 502(Medical Record--Narrative Summary Clinical Survey) as enclosure 1 and DA Form 3349 (Physical Profile) as enclosure 2. d. In cases where the soldier has been determined mentally incompetent, a statement confirming the name, address, telephone number, and relationship of individual authorized to act in 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. 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 individual having authority to act for an incompetent soldier, in the absence of a valid and pertinent power of attorney or a court order authorizing an individual to act for an 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. An individual is an adult upon reaching the age of majority under the state law of the individual'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 individual 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 individual has reached age of majority. (5) Adult brother and sisters in order of seniority. (6) Grandparents in order of seniority. (7) Other relatives in order of relationship to the individual 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.

e. Statement from soldier's commander confirming whether any adverse personnel action is being considered against the soldier and describing the soldier's current duty performance. The description of duty performance should address the following: (1) The soldier's most recent performance of duty. (2) Any special limitation of duty due to the soldier's physical condition. (3) The soldier's ability to adequately perform the duties normally expected of an individual of the soldier's office, grade, rank, or rating. (4) The soldier's current duty assignment, anticipated future assignments, branch, age, and career specialities. f. A copy of the document reflecting the approved LD decision (AR 600­8­1) if the disability is the result of injury; the result of disease secondary to injury or due to misconduct; or the result of disease when the case is that of a soldier performing duty for 30 days or less. Provide either a DD Form 261, DA Form 2173, or similar LD reports from the Navy or Air Force.If the documents are not available, the MTF commander will send a request for LD decision, well in advance of a preparation of the MEBD report, to the soldier's unit of assignment at the time of injury or disease. Include a copy of the request in the case file sent to the PEB and send a copy to PERSCOM(TAPC­PED­S). The request will provide the following information: (1) Name, grade, and SSN. (2) Date and place of injury. (3) Short summary of circumstances of injury, including the identity of MTF where the soldier was treated. (4) Unit of assignment when the soldier was injured. (5) Statement that the LD determination is required for disability processing. g. Orders or training schedule under which the soldier was performing active duty, active duty for training, or inactive duty training when the soldier is subject to disability processing under chapter 8. If the soldier is retained for medical care beyond termination date of active duty for training, include a copy of the affidavit required by AR 135­381. If referral to a PEB occurs during rehospitalization for treatment of residuals of an injury, provide a copy of the authorization for rehospitalization required by AR 40­3, para 4­2d(2). h. Copy of memorandum approving COAD when case is that of a soldier previously continued on duty under the COAD program. If available, include a copy of the DA Form 199 related to the previous COAD action. i. Soldier's request for COAD under chapter 6 of this regulation. j. Statement of COAD counseling when soldier has 18 but less than 20 years of service and declines to request COAD. (para 6­5). k. Copy of decision by the GCMCA to waive administrative separation under AR 635­200, chapter 14 for referral of soldier to a PEB. Requirement applies even if a general discharge is directed under AR 635­200, chapter 14.Requirement is not applicable to soldiers pending separation under AR 635­200, chapter 13. l. Statement from the custodian of the soldier's personnel records confirming whether one of the circumstances below is applicable at the time the soldier is referred to a PEB. (1) Voluntary or mandatory retirement processing. (2) Expiration of term of service without reenlistment. (3) Expiration of term of service with bar to reenlistment. (4) Involuntary release from active duty due to DA board action. (5) Qualitative management denial for reenlistment. (6) Adverse personnel action. m. Document authorizing soldier's retention beyond scheduled separation or retirement date. (See AR 635­100, AR 635­120, or AR 635­200.) n. If available, DA Form 2 (Personnel Qualification Record-- Part I) and DA Form 2­1 (Personnel Qualification Record--Part 2). If the documents are not available, use alternative sources to obtain the required personnel data if the information is reliable. Examples