BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160000834 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x_____ __x______ __x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160000834 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * awarding the applicant the Army Good Conduct Medal (1st Award) for the period 20 August 2012 through 19 August 2013 * deleting from item 13 of his DD Form 214 the Global War on Terrorism Expeditionary Medal and the Overseas Service Ribbon, and adding to item 13 the Army Good Conduct Medal (1st Award) * deleting from item 18 the entries "Served in a Designated Imminent Danger Pay Area" and "Service in Kuwait 20121014-20130708" 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to correcting his DD Form 214: * to show separation and reentry codes other than "SEK" and "4R" * a different narrative reason for separation * to show his training and award of the Expert Marksmanship Qualification Badge (for an unknown system/weapon) ___________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: 19 September 2017 DOCKET NUMBER: AR20160000834 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 requests an opportunity to personally appear before the Board. Additionally, he requests correction of the following entries on his DD Form 214 (Certificate of Release or Discharge from Active Duty): * separation code of “SEK” * reentry code (RE) of "4R" to allow reentry into the military * narrative reason for separation * records to show he never served in an imminent danger pay zone or in Kuwait * add his training, award of the Army Good Conduct Medal * Expert Marksmanship Qualification (weapon system not stated) 2. The applicant states, in effect, he wants to reenter the military. He does not have a psychotic disorder and he did not serve in Kuwait. He has training that is not listed on his DD Form 214 and he was never awarded the Army Good Conduct Medal. He also qualified as an expert marksman. 3. The applicant provides college transcripts and a congratulatory letter from a county police department. CONSIDERATION OF EVIDENCE: 1. The applicant previously served in the U.S. Air Force (USAF) from November 1996 to May 1997 and he was discharged due to entry level performance and conduct. 2. He enlisted in the U.S. Army Reserve for 8 years on 2 October 2008. His records show he attended training for two military occupational specialties (MOS): * He completed Phase I of MOS 35M (Human Intelligence Collector) Course from 26 February to 4 March 2009, at Fort Devens, MA * He attended but failed Phase II of the MOS 35M Course from 5 March to 9 April 2009 at Fort Devens, MA * He attended but failed Phase II of the MOS 35M Course from 27 July to 2 September 2009 at Fort Huachuca, AZ * He attended but failed Phase II of the MOS 35M Course from 18 October to 19 November 2009 at Fort Devens, MA * He completed Phase I of MOS 25B (Information Technology Specialist) from 12 April to 29 April 2010 * He completed Phase II of MOS 25B from 30 April to 27 May 2010 3. On 28 October 2010, Headquarters, 63rd Regional Support Command, published Orders 10-301-00119 awarding him primary MOS 25B. 4. On 9 January 2012, he was transferred from the 368th Military Intelligence Battalion, Oakland, CA, to the Information Operations Center, Adelphi, MD. He was also promoted to sergeant (SGT)/E-5, on 1 January 2012. 5. He entered active duty on 20 August 2012. At some point, he was diagnosed with a medical condition that failed retention standards. He was retained on active duty to participate in the Reserve Component Medical Retention Processing Program. He was assigned to the Warrior Transition Unit, Bethesda, MD. 6. His narrative summary shows he entered the Integrated Disability Evaluation System (IDES) on or around 6 November 2012 following a medical examination that diagnosed him with various ailments as shown on his medical evaluation board (MEB) when he failed to meet retention criteria in accordance with Army Regulation (AR) 40-501 (Standard of Medical Fitness). 7. On 8 March 2013, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, found he was diagnosed with the conditions listed below and recommended referral to a physical evaluation board (PEB). Diagnosis Met Retention Standards Did Not Meet Retention Standards 1. Psychotic Disorder Not Otherwise Specified X 2. Thoracic Spine Strain X 8. On 18 March 2013, after having been counseled, the applicant indicated he reviewed the contents of the MEB, and after his appeal had been considered, the applicant agreed with the findings and recommendations, and authenticated the DA Form 3947 (MEB Proceedings) with his signature. He acknowledged: * he reviewed the contents of the MEB, physical profile, and narrative summary; he understood the PEB would only consider the conditions listed on his physical profile * the physical profile included all his conditions and whether or not they met retention standards; the conditions that did not meet retention standards were properly listed * he provided all medical documents in his possession to be included in the MEB; he agreed that the MEB accurately covered his medical conditions at the time 9. On 5 August 2013, a formal PEB convened and found his condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit. The PEB rated the applicant's condition of "Psychotic disorder not otherwise specified" at a 50 percent disability rating and recommended his placement on the temporary disability retired list (TDRL). The PEB stated: a. This condition onset in August 2012 at Fort Dix, NJ, when the Soldier demonstrated abnormal behavior not associated with a specific event or trauma but requiring psychiatric hospitalization. Despite treatment, his impairment persists. This condition is unfitting because the symptoms of psychotic disorder interfere with the Soldier’s ability to perform the common Soldier tasks of carrying and firing an individually assigned weapon and living in an austere environment without worsening his medical condition. b. The specific codes to describe the Soldier’s condition and the disability percentage was determined by the Department of Veterans Affairs (VA) and is documented in a VA memorandum dated 28 May 2013. The disposition recommendation was determined by the PEB based on the VA disability rating proposed and applicable statutes and regulations for the physical disability evaluation system. c. The PEB recommends placement on the TDRL because the Soldier’s disability is not sufficiently stable for final adjudication from a disability percentage perspective. This is not a permanent rating or retirement. The disposition of the Soldier’s disability rating and retirement status can change when the case is finalized and the Soldier is removed from the TDRL. Based upon the results of the future TDRL evaluation, the PEB may find the Soldier fit for duty; recommend permanent retirement (if overall rating is 30 percent or greater or the Soldier has at least 20 years of active federal service); recommend separation from the service with severance pay (if the overall rating is less than 30 percent); or recommend the Soldier remain on the TDRL for another period of time (not to exceed five years cumulative time). d. The applicant was counseled and indicated that he did not want reconsideration of his proposed rating by the VA but he did not concur with the PEB findings and recommendations. Additionally, he did not submit a written appeal. 10. The U.S. Army Physical Disability Agency (USAPDA) reviewed his PEB processing and approved it on behalf of the Secretary of the Army. 11. On 20 September 2013, the applicant was retired from active duty under the provisions AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability, and on 21 September 2013, he was placed on the TDRL in his retired rank/grade of SGT/E-5. His DD Form 214 shows he completed 1 year, 1 month, and 1 day of active service. It also shows in: a. Item 13 (Decorations, Medals, Badges, Citations and campaign Ribbons Awarded or Authorized), the National Defense Service Medal, Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal, Army Service Ribbon, Overseas Service Ribbon, Armed Forces Reserve Medal with "M" Device, and USAF Training Ribbon. b. Item 14 (Military Education), Warriors Leader Course, 2 weeks. c. Item 18 (Remarks) "Served in a Designated Imminent Danger Pay Area," "Service in Kuwait 20121014-20130708," and Ordered to Active Duty in Support of Operation Enduring Freedom in accordance with Title 10, U.S. Code, section 12302." d. Item 26 (Separation Code) SEK. e. Item 27 (RE Code) 4R. a. f. Item 28 (Narrative Reason for Separation), Disability - Temporary (Enhanced). 12. On 18 September 2015, following a medical examination, a formal TDRL PEB convened and found that upon reevaluation, although some changes in his medical condition may be anticipated, for the purpose of adjudicating his disability compensation, his condition was considered to have stabilized at a degree of severity that was equal to or greater than 30 percent. Therefore, permanent retirement was recommended. The TDRL PEB noted that: a. His condition was "Unspecified schizophrenia spectrum and other psychotic disorder," listed as Psychotic Disorder not Otherwise Specified on the MEB Proceedings. He was placed on TDRL on 22 September 2013. His condition continues to be unfitting because continuing in the military presents a decided medical risk to the Soldier since it is likely the condition would deteriorate if the Soldier returned to the stresses of active military service. b. This condition is considered stable for rating and is rated for occupational and social impairment, with deficiencies identified in most areas, such as work, school, family relations, judgment, thinking, or mood to include persistent delusions and impaired impulse control. c. The applicant requested that the PEB find him fit for unspecified schizophrenia spectrum and other psychotic disorder. He testified that his psychotic episode in October 2012 which led to his medical board was a one-time event, and he wished to be found fit so he could continue to serve. He is also no longer on medication. He called a witness, a former supervisor who testified that the Soldier was trustworthy and capable of working in his MOS. The PEB acknowledged the testimony, but could not find the Soldier fit without additional medical evidence. The original PEB findings were upheld, and he was placed on the permanent disability retirement list at 70 percent disabled. The applicant elected not to concur with the findings and recommendations of the TDRL PEB, but he did not submit a written appeal. d. The National Capital Region PEB (NCR PEB) received his formal PEB Proceedings, signed on 18 November 2015, with his non-concurrence to the findings of the formal PEB. He was found unfit for further service due to his unspecified schizophrenia spectrum and other psychotic disorder. No additional documentation was attached to his appeal, although the PEB considered the additional “DBQ exam,” dated 6 October 2015. After a thorough review of his case, it is with regret that the NCR PEB did not find sufficient evidence to change its fitness determination. The NCR PEB did not make this decision lightly, and consulted with an additional physician on his case. While the NCR PEB has tremendous respect for his efforts to continue to serve our country, his diagnosis was so severe that the NCR PEB cannot change the determination without very compelling medical evidence. The 6 October 2015, “DBQ exam” described his symptoms as less severe than indicated in previous exams, but the psychologist still felt he suffered from acute stress disorder and provided no evidence that was strong enough to change the original fitness determination. Therefore, this PEB does not find sufficient basis to change the determination. His entire case file would be forwarded to the USAPDA for review. 13. On 3 December 2015, the USAPDA published Orders D337-04 removing him from the TDRL and permanently retiring him in the rank/grade of SGT/E-5 with a 70-percent rating. REFERENCES: 1. AR 635-8 (Separation Processing and Documents) principles of support, standards of service, policies, tasks, rules, and steps governing required actions in the field to support processing personnel for separation and preparation of separation documents. Chapter 5 covers the preparation of the DD Form 214. It states for: a. Item 13, list all federally recognized awards and decorations for all periods of service. b. Item 14, list all formal, in-service (full time attendance) training courses successfully completed during the period of service covered by the DD Form 214 of at least 1 week or 40 hours duration. Include course title, length in weeks, and year completed. This information is to assist the Soldier in job placement and counseling; therefore, do not list training courses for combat skills. c. Item 18, is used for mandatory requirements when a separate block is not available; as a continuation for selected entries. For Reserve Component (RC) Soldiers ordered to active duty, participating in or supporting a contingency operation, and deployed to a foreign country, enter the following three statements in 1, 2, and 3, below in succession. For RC Soldiers ordered to active duty, participating in or supporting a contingency operation, and stationed in continental United States enter statements in 1 and 3, below. * Ordered to active duty in support of (Operation Name) per Title 10, U.S. Code, (Appropriate Section) * Service in (Name of Country Deployed) from (inclusive dates) * Soldier has/has not completed period of active duty for purpose of post-service benefits and entitlements d. Item 26, obtain the correct Separation Code AR 635-5-1 (Separation Program Designators (SPD)), which provides the corresponding SPD code for the regulatory authority and reason for separation. SPD codes are intended for Department of Defense internal use in collecting data to analyze statistical reporting trends that may influence changes in separation policy. e. Item 27, AR 601–210 (Active and Reserve Components Enlistment Program) determines reentry eligibility and provides regulatory guidance on RE codes. f. Item 28, the narrative reason for separation is based on regulatory or other authority and can be checked against the cross reference in AR 635–5–1. 2. AR 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. * RE-1 applies to Soldiers completing their terms of active service who are considered qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable – they are ineligible unless a waiver is granted 3. AR 635-5-1 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 SEK as the appropriate code to assign enlisted Soldiers who are retired under the provisions of AR 635-40, chapter 4, by reason of temporary disability. 4. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers. The SPD/RE Cross Reference Table in effect at the time of the applicant's separation established the RE code of 4R as the proper RE code to assign to enlisted Soldiers retired by reason of disability with an SPD code of SEK. 5. AR 600-8-22 (Military Awards) sets forth requirements for award of basic marksmanship qualification badges. The qualification badge is awarded to indicate the degree – Expert, Sharpshooter, and Marksman – in which an individual has qualified in a prescribed record course. An appropriate bar is furnished to denote each weapon with which the individual has qualified. For example, Expert Marksmanship Qualification Badge with Rifle Bar or Sharpshooter Marksmanship Qualification Badge with Pistol Bar or Marksman Marksmanship Qualification Badge with Automatic Rifle Bar. Award of marksmanship qualification badges is not permanent. An award for a previous marksmanship qualification is revoked automatically whenever an individual, upon completion of firing a record course for which the previous award was made, has not attained the same qualification. 6. Army Regulation 600-8-22 states the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity. This period is 3 years except in those cases when the period for the first award ends with the termination of a period of active Federal military service. Although there is no automatic entitlement to the Army Good Conduct Medal, disqualification must be justified. 7. By message dated 8 February 2005, the Military Awards Branch, U.S. Army Human Resources Command, provided clarification on award of the Army Good Conduct Medal. It stated RC Soldiers mobilized onto active duty under Title 10 are performing “active Federal military service” and are therefore eligible to be awarded the Army Good Conduct Medal. The qualifying periods of service must be continuous enlisted active Federal service. 8. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. 2. With respect to his training, although he attended several phases of training in MOS 35M, passing some and failing others, he did so prior to entry in an active Army status. Item 14 shows all formal, in-service (full time attendance) training courses successfully completed during the period of service covered by the DD Form 214 of at least 1 week or 40 hours duration. 3. With respect to his awards: a. He was ordered to active duty in support of Operation Enduring Freedom but there is no evidence he deployed. Although he did not deploy anywhere, he completed 1 year, 1 month, and 1 days of active service and he had attained the rank/grade of SGT/E-5. There are no derogatory information in his record which would have disqualified him from receiving his first award of the Army Good Conduct Medal. b. Because he did not deploy, he could not have been eligible for the Global War on Terrorism Expeditionary Medal or the Overseas Service Ribbon. Both of these awards are erroneously listed on his DD Form 214. c. Although it is reasonable to presume every Soldier qualifies with their assigned weapon system during training, his service records do not contain any documents in the form of unit/special/permanent orders, memoranda, disposition forms, rosters, or other documentation confirming his qualification in any weapon systems and/or the degree of such qualification. 4. With respect to his disability processing, narrative reason for separation, SPD code, and RE code: a. The available evidence shows the applicant underwent a medical examination that led to a finding of a condition that failed retention standards and warranted his entry in the disability system. He underwent an MEB which recommended referral to a PEB. The PEB determined he was physically unfit for further military service. b. The PEB rated his condition of "psychotic disorder not otherwise specified" at a 50 percent disability rating and recommended his placement on the TDRL. The PEB noted that this condition is unfitting because the symptoms of psychotic disorder interfere with the applicant's ability to perform the common Soldier tasks of carrying and firing an individually assigned weapon and living in an austere environment without worsening his medical condition. Because his disability was not sufficiently stable for final adjudication from a disability percentage perspective, the PEB placed him on the TDRL. c. The applicant's rating was assigned based on a finding at the time of separation. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the disability system. d. His narrative reason for separation was assigned because he was found unfit and placed on the temporary retired list under the provisions of chapter 4 of AR 635-4. Absent the diagnosis of a medical condition that failed retention standards there was no fundamental reason to process him for disability, and absent the finding of this condition as unfitting, there would have been no reason for the PEB to rate this condition. The underlying reason for his discharge was his temporary disability. The only narrative reason for separation permitted under that paragraph is "Disability - Temporary" which is correctly shown on his DD Form 214. e. The corresponding SPD code for "Disability - Temporary" is "SEK" and the corresponding RE code for a Soldier retiring by reason of disability is 4R. Both codes are correctly listed on his DD Form 214. 5. With respect to his deployment, there is no evidence that he deployed. The entries in item 18 of his DD Form 214 that he "Served in a Designated Imminent Danger Pay Area" and "Service in Kuwait from 20121014-20130708" appear to be errors. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000834 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000834 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2