BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150006382 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ __x______ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150006382 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __________x_______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150006382 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant request, in effect, correction of his narrative reason for separation from "Condition, Not a Disability" to "Disability." 2. The applicant states: a. He was discharged for a physical condition, not a disability. This narrative reason of separation prevented him from being able to rejoin the military. Moreover, the injury that he received in the military still causes him a great deal of pain, which is a hindrance for him getting a stable occupation. Due to the unwanted early, forced separation from the military, he has been denied benefits by the Department of Veteran Affairs (VA), which causes him a hardship. This separation is in error because he should have been able to receive medical treatment (while on active duty) and proper medical board review. He should have been processed out of the military under medical conditions, so that he would able to receive proper medical attention by the VA. Hence, he was denied medical attention from the VA (which he was told he would be able to receive upon separation). He has been unable to receive any medical attention, due to his poverty, and low-income status (which is directly related to his inability to retain a job due to his injury). b. He disagreed with the conditions of separation the day he received his separation document. He told the military representative that this was an error and an unjust conclusion of his condition. They told him that they would not change the separation conditions, and that the honorable discharge was all that mattered. Although he had fought to stay in the Army, he was forcibly removed, even after he was told by his leadership that they were only going to transfer him to another unit where he would be given the proper medical attention and time needed to heal. Upon being forced out, he was told that he would be able to receive medical treatment from the VA and have a medical review board by the VA in his home state. Both of these were lies. Upon requesting treatment from the VA, the VA denied to see him because he had not fulfilled two years of his enlistment contract. Since his discharge, he has been given little to no information about his rights. He did not know he could appeal for an amendment to his DD Form 214 (Certificate of Release or Discharge from Active Duty). 3. The applicant provides his DD Form 214 and separation packet. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, and has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 26 February 2001 and he held military occupational specialty (MOS) 98C (Signal Intelligence Analyst). Following completion of MOS training, he was reassigned to Company B, 313th Military Intelligence Battalion, Fort Bragg, NC. 3. In April 2002, the applicant underwent a command-directed mental status evaluation. His behavior was evaluated as “suspicious” and “eccentric” and his mood was flat. He had clear thinking process and good memory. He had the mental capacity to understand and participate in the proceedings and he was mentally responsible. He met the criteria for retention in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness). The examiner diagnosed him with an adjustment disorder (chronic) with mixed disturbance of emotions and conduct and personality disorder, not otherwise specified (with schizotypal and paranoid features). 4. On 21 August 2002, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, due to other designated mental conditions. The immediate commander opined that the applicant's continued military service would have an adverse impact on good order, morale, and discipline. He recommended an honorable discharge. 5. On 21 August 2002, the applicant acknowledged receipt of the separation notification memorandum. a. He indicated that he understood he had 7 days from the date of this notification to submit a statement and that he had been afforded the right to consult with military counsel at no expense to himself or with civilian counsel at no expense to the Government. b. His statement of rights is not available for review. It would have shown whether he consulted with counsel or waived his right to counsel. It would have also shown, if he had consulted with counsel, he would have been advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights. He would have acknowledged his understanding that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. c. While his acknowledgement of receipt is contained in his separation packet, the packet does not indicate whether he waived his rights. However, paragraph 2-2(e) of AR 635-200 states if the Soldier refuses to consult with counsel and/or declines to respond as to the waiver of rights, such declination will constitute a waiver of rights. 6. On 28 August 2002, the applicant's immediate commander initiated separation action against him under the provisions of AR 635–200, paragraph  5-17. The intermediate commander recommended approval. 7. Consistent with the chain of command's recommendations and following a legal review for legal sufficiency, the separation authority approved the applicant's discharge under the provisions of AR 635-200, paragraph 5-17, with an honorable discharge. 8. He underwent a separation physical in connection with this separation. The examining doctor found him medically qualified for service and assigned him a PULHES of "1-1-1-1-1-2-1." 9. He was honorably discharged on 19 September 2002. His DD Form 214 shows he was discharged under the provisions of AR 635-200, paragraph 5-17, due to a physical condition, not a disability. He completed 1 year, 6 months, and 24 days of creditable active military service. This form also shows the following entries: * item 26 (Separation Code) – "JFV" * item 27 (Reentry Code) – "3" 10. The Board provided his VA medical records to the Office of the Surgeon General (OTSG) for review. An OTSG official at the U.S. Army Medical Department, Fort Drum, NY, provided an advisory opinion on 19 July 2016. The official stated: a. The Board requested an advisory opinion on whether the applicant requires correction to his military record in the form of a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) for the diagnosis/condition of Adjustment Disorder. All provided medical records were reviewed, specifically documents noting his diagnosis of adjustment disorder. b. Reviewing the record indicates the applicant had evaluations for behavioral health conditions. In 2002 the diagnosis of adjustment disorder was considered a diagnosis that did not constitute a physical disability. Therefore, OTSG agrees with the initial finding that the condition did not warrant the MEB process. The applicant is not eligible for an MEB for adjustment disorder diagnosed in 2002. 11. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit additional documents and/or a rebuttal. He did not respond. REFERENCES: 1. AR 635-200 provides for the separation of enlisted personnel from active duty. Paragraph 5-17, states commanders who are special court-martial convening authorities may approve separation under this paragraph based on other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability, which is sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. 2. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. It identifies SPD code JFV as the appropriate code to assign to enlisted Soldiers who are administratively discharged under the provisions of AR 635-200, paragraph 5-17, based on a condition, not a disability. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army disability system and 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. It provides for medical evaluation boards, which 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 qualifications for retention based on the criteria in AR 40-501. Paragraph 3-1 provides that the mere presence of 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 their office, grade, rank, or rating. To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in AR 40-501, chapter 3. 4. AR 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. DISCUSSION: 1. The evidence of record shows the applicant underwent a command-directed mental status evaluation. He was diagnosed with adjustment disorder (chronic) with mixed disturbance of emotions and conduct and personality disorder, not otherwise specified (with schizotypal and paranoid features). As a result, his chain of command initiated separation action against him for a condition that did not amount to a disability. 2. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. His separation under the provisions of AR 635-200, paragraph 5-17, due to a condition – not a disability, was appropriate. His narrative reason for separation is correctly shown on his DD Form 214 and he has provided insufficient evidence to warrant changing this reason. 3. It is unclear what condition the applicant believes rendered him unfit for service. In order to be separated for disability, the Army has a process that begins with entry into the disability system. Referral to this system requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition. In the applicant's case, there is no evidence to show he had: * a permanent physical profile * a diagnosis that a medical condition that failed retention standards * a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade * a medical examination that warranted his entry into the disability system 4. Requests for changing the narrative reason for separation are not granted solely for the purpose of making an applicant eligible for veteran?s benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her reason for separation. The applicant has not shown an error, an injustice, or a reason to make a correction to his military records. 5. Based on the authority and reason for separation, he was appropriately assigned the separation code of “JFV” in accordance with the applicable regulation. This is the appropriate code for members separated for a "Physical Condition, Not a Disability." //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150006382 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006382 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2