IN THE CASE OF: BOARD DATE: 18 December 2020 DOCKET NUMBER: AR20200001695 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was discharged due to medical reasons. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DA Form 3822-R (Report of Mental Status Evaluation) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states his long term depression was worsened by military service. He has a 100 -percent disability rating from the Department of Veteran Affairs for post- traumatic stress disorder (PTSD). 3. On 13 January 2005, the applicant was issue a temporary S3 profile due to being under the care of Community Mental Health Services. 4. A Report of Mental Status Evaluation, dated 17 May 2005, shows the applicant self- referred to division mental health secondary to worsening depressive symptoms in the setting of numerous psychosocial stressors. The report shows: a. The applicant was diagnosed with dysthymic disorder, adjustment disorder with mixed anxiety and depressed mood, alcohol abuse, continuous, and personality disorder with borderline dependent traits. b. The applicant identified a chronic history of depression dating back to childhood that has worsened in the setting of routine military duty. In addition, this service member possesses certain personality traits that are maladaptive (poor sense of self, impulsivity, fears of abandonment). These symptoms, however, do not necessitate disposition through medical channels and are better dealt with administratively. c. The applicant was psychiatrically cleared for administrative action deemed Appropriate by command. He has the mental capacity to participate in administrative proceedings. d. Until his separation is complete it was recommended the command enroll him in the Army Substance Abuse Program and that he continue to receive treatment at Behavioral Health. 5. On 11 July 2005, the applicant accepted non-judicial punishment for being absent without leave and wrongfully using marijuana. 6. On an unspecified date, the applicant's company commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for Commission of a Serious Offense. The commander stated the reason for the proposed action was the applicant's wrongful use of marijuana. The applicant was informed of his rights and acknowledged notification of receipt. 7. After being advised by consulting counsel of the basis for the contemplated action to separate him for Misconduct and its effects; of the rights available to him; and the effects of any action taken by him in waving his rights. He accepted the opportunity to consult with counsel and did not submit statements in his own behalf. He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a discharge less than honorable was issued to him. 8. On 9 August 2005, an authorized official approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14-12c. He directed the issuance of a general, under honorable conditions discharge. 9. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 30 August 2005, under the provision of Army Regulation 635-200, paragraph 14-12c due to Misconduct. He completed 2 years, 9 months, and 28 days of net active service this period. His service was characterized as general, under honorable conditions. 10. On 12 April 2019, the Army Discharge Review Board upgraded the applicant's characterization of service to honorable. ? 11. The applicant's available record is void of documentation and he does not provide evidence showing he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 13. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes DES 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 office, grade, rank, or rating. 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. 14. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the physical evaluation board (PEB) rates all disabilities. 15. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 16. Title 38, United States Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 17. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 18. Based on the applicant’s condition the Army Review Board Agency medical staff provided a medical review for the Board members. See ?MEDICAL REVIEW? section. MEDICAL REVIEW: 1. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: The documentation available indicates at the time of separation, the applicant’s mental health was stable and he was cleared for discharge; merely having a behavioral health diagnosis does not equate to a Soldier requiring a Medical Evaluation Board (MEB). Moreover, VA records indicate the applicant worked consistently until 2012, taking an absence related to seizures. While the VA initially service connected the applicant for Major Depressive Disorder (MDD) in 2017, this was noted to be a progression of in-service symptoms, rather than existing in-service, and occurred more than a decade after discharge. At this time, documentation does not support the applicant failed medical retention standards at the time of separation. Accordingly, a referral to the Disability Evaluation System (DES) is not recommended. 2. The applicant submitted a January 2005 profile listing a temporary psychiatric profile; he was in treatment and deployment delayed for three months to complete treatment. The profile expired in March without renewal; he was stable and no longer required psychiatric symptoms. A May 2005 Chapter Mental Status Exam (MSE) listed diagnoses of Dysthymic Disorder, Adjustment Disorder, and Alcohol Abuse related to stressors as well as Personality Disorder. The provider determined the applicant met medical retention standards and was responsible for his behavior; he was cleared for separation. 3. The applicant is 100% service connected for PTSD, as of February 2019, initially Major Depressive Disorder at a lower rating in December 2017. In June 2010, the applicant went to the VA requesting an alcohol assessment for court. The provider noted the applicant would not provide the purpose of the evaluation, how it was going to be used, or consequences of any recommendations. Furthermore, “when asked about the basics of the event that led to his being arrested the vet was wholly non-disclosing ‘I was dragged to this place and there was a fight. All I know was that I didn’t start it’ No further detail was provided.” Although the applicant initially provided consent for the provider to speak to his probation officer, he later pulled consent wanting to consult with a lawyer. 4. In February 2013, the applicant had a housing intake noting consistent work from 2005 to 2012, stopping due to seizures not a psychiatric condition. The applicant was enrolled in the program. In July 2016, the applicant was arrested after being “hoisted up from his balcony to the unit above his unit … opened the sliding door … into the living room at which point the tenant of that unit who had been sleeping came into the living room … Veteran exited through the front door.” The applicant denied criminal intent noting he was trying to help a friend who was locked out. As a result, he was pending eviction. With more follow-up afterward, to assist with the eviction process and finding new housing, the VA staff noted he was chronically intoxicated on the phone, when they visited the home, and in court. Later in the month, additional charges were added for leaving the gas on in his apartment filling the building. He denied mal-intent. The VA staff noted at a subsequent visit, the gas was running again. In August, the police took him to the ER with erratic behavior; he was seen and released as behavior was substance related rather than psychiatric. The applicant was seen in October denying trauma while in Korea. The provider noted a history of substance induced depression and anxiety. In January 2017, the applicant was diagnosed with PTSD from childhood trauma, his father died when he was 16 and half-brother murdered; MDD; and various substance use disorders. He noted pre-enlistment depression and suicide attempts. The applicant denied any military trauma. 5. In December 2017, he had a Compensation and Pension (C&P) exam which diagnosed MDD and Alcohol Use Disorder. While the applicant reported a physical assault by a SSG in Korea, the provider indicated he did not meet criteria for PTSD. The provider opined the MDD was service connected as it was a progression of symptoms in-service; he did not have MDD in-service. In September 2018, the applicant was hospitalized related to depression, suicidality, and substance abuse with discharge diagnoses of Unspecified Depressive Disorder and Substance Use Disorders. In January 2019, he started a new job and was reported to be doing well. In February, he had a second C&P and diagnosed with PTSD related to an in-service physical assault by a SSG increasing his rating to 100%; however it is unclear how the applicant met criteria for 100% given he was successfully working. Moreover, his providers listed PTSD by history; this was not an active diagnosis. Treatment diagnoses were Social Anxiety Disorder and Substance-Induced Mood Disorder. In April, the applicant’s trauma treatment focused on childhood events, not military, with a diagnosis of Alcohol Use Disorder. As of November 2020, the applicant’s diagnoses are Alcohol Use Disorder, Stimulant Use Disorder, and Unspecified Depressive Disorder. Notes indicate he is attending school and doing well at this time. 6. The applicant was previously upgraded to Honorable with minor misconduct by the ADRB. 7. Personnel records are void of performance evaluations. The exit physical, both completed by the applicant and physician, noted treatment for depression with a S1 profile at the time of separation; the applicant did not have psychiatric limitations. The applicant’s Enlisted Record Brief (ERB) lists a S1 as of August 2005; the applicant did not have psychiatric limitations. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s narrative reason for separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XXX DENY APPLICATION 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. 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. ? REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. An under other than honorable conditions discharge is normally considered appropriate. 3. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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 office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting separation for disability. a. The disability system assessment process involves two distinct stages: the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. b. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities. The VA Schedule for Rating Disabilities is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 5. Title 38 United States Code 1110 (General - Basic Entitlement), For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 6. Title 38 United States Code 1131 (Peacetime Disability Compensation - Basic Entitlement), For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001695 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1