BLUF: You will be referred to a MEB and likely to a PEB. Whether the PEB determines that you are fit or unfit will turn on the current status of your Type I diabetes including your HgA1C levels, the existence of any residual effects such as diabetic retinopathy or episodes of ketoacidosis or hypoglycemic reactions, the manner in which the disease must be managed, i.e., restricted diet alone, diet and regulation of activities, or injection of insulin. A requirement to use insulin or the existence of any residual effects will weigh heavily in favor of a finding of unfitness. Strong chain of command and other support from those with whom or for whom you work or worked will also be very important to convince a PEB that you are fit for duty and should be retained.
The principal decision the MEB makes is whether a Soldier’s condition fails to meet medical retention standards under the guidelines of Army Regulation (AR) 40-501. If so, and if there is some indication that the condition may prevent the Soldier from reasonably performing his military duties, the Soldier’s case is referred to a Physical Evaluation Board (PEB). AR 40-501, paragraph 3–29(d)(1) specifies that all cases of Type I diabetes mellitus fail retention standards, so it is highly likely your case will be referred to a PEB.
A PEB will make the determination whether your Type I diabetes renders you unfit to perform your military duties. AR 635-40, Disability Evaluation for Retention, Retirement, or Separation (19 January 2017), paragraph 5–1 provides the standard for unfitness due to disability: “A Soldier will be considered unfit when the preponderance of evidence establishes that the Soldier, due to disability, is unable to reasonably perform the duties of their office, grade, rank, or rating…” In making a determination of unfitness, paragraph 5-3 provides that the following criteria may be included in the assessment:
a. The medical condition represents a decided medical risk to the health of the Soldier or to the welfare of other Soldiers were the Soldier to continue on active duty or in an active Reserve status.
b. The medical condition imposes unreasonable requirements on the Army to maintain or protect the Soldier.
Paragraph 5–4 outlines the factors to be used to determine whether a Soldier’s medical impairments preclude the Soldier from reasonably performing their duties, including whether the Soldier can perform the common military tasks required for the Soldier’s office, grade, rank, or rating, including the functional tasks listed on DA Form 3349, and whether the Soldier is medically prohibited from taking the Army Physical Fitness Test (APFT). A Soldier’s inability to pass the APFT does not preclude a finding of fitness.
Army Directive 2024-01 (Army Fitness Determinations and Deployability) (Feb. 9, 2024) revises AR 635–40 by authorizing the Physical Evaluation Board (PEB) to determine a Soldier’s fitness for duty based on multiple criteria, including the ability to deploy with a medical waiver. The Directive states at paragraph 4.:
a. When determining a Soldier’s ability to be found fit in consideration of deployability, the PEB will consider the following:
(1) Does the Soldier have specialized skills and/or experience/seniority the U.S. Army requires?
(2) Does the nonmedical record, including, but not limited to, letters, personal testimony, and/or evaluation reports, support that the Soldier can reasonably perform the duties of the office, grade, or rank?
(3) Is the Soldier’s medical condition well controlled such that it is not currently a decided medical risk to the Soldier’s health or the welfare of other Soldiers?
(4) Can the Soldier’s environment be controlled to prevent exacerbating existing medical conditions without imposing on the Army unreasonable requirements to maintain or protect the Soldier?
(5) Does the Soldier’s referred condition(s) make it unlikely the Soldier would receive a medical waiver to deploy to a Combatant Command Area of Responsibility?
b. No single factor is dispositive, and the PEB may find the Soldier fit for duty based on the Soldier’s ability to perform the duties of the assigned office, grade, rank, or rating.
It is my understanding that the Army has an unwritten standard that a Soldier with Type 1 diabetes who has a HgA1C reading of 7.1 or above, which typically involves the need for insulin injections to manage the disease, will be found unfit based on the inability to deploy due to the need for insulin access in austere environments. Short of that, however, demonstrating that management of the disease does not require insulin (at least yet) together with a strong showing of excellent APFT scores, excellent OER’s, and strong chain of command and other support for retention may be sufficient to carry the day. Make sure that your medical records properly document the proper status of the disease and, more importantly, the manner in which it is currently managed. Retention will be much more difficult if you require insulin to manage the disease or have any residual impacts or restrictions on your ability to perform your duties in any environment.
You should also be mindful that if the PEB finds you unfit, your military disability rating will be determined by the VA consistent with the VA Schedule of Disability Ratings at 38 C.F.R. § 4.119, Diagnostic Code 7913 for Diabetes Mellitus. To be eligible for a military disability retirement, your rating must be 30% or more, which in your case would mean a 40% rating under DC 7913, the evaluation criteria of which requires “one or more daily injection of insulin, restricted diet, and regulation of activities.” Your potential eligibility for a disability retirement compared to the likelihood a PEB will find you fit or unfit is a calculus of which you will need to remain mindful depending on the status of the disease.
You eventually will be referred to Soldier’s Counsel to represent you at the PEB, but they are all extremely overworked and won’t focus on your case until it’s well down the PEB path. I recommend you consider consulting with private counsel such as Jack Gately, Brian Schenk, or Jason Perry to name a few (you can Google them for details), as they can help you strategize your approach and be properly prepared at each important gatepost in the Integrated Disability Evaluation Process. Often it is the steps taken during the MEB stage or the Informal PEB stage that will be dispositive for a desired outcome later.
