ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 
IN THE CASE OF:  BOARD DATE: 15 April 2021 DOCKET NUMBER:  AR20200002235 
APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a separation code consistent with separation for psychological or medical reasons, and restoration of his separation pay recouped by the Department of Veterans Affairs (VA). 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552), dated 18 January 2019 
. a third-party statement from his wife 
. correspondence to and from the Office of his Member of Congress (10 pages) 
. DD Forms 689 (Individual Sick Slips) (three) 
. DA Form 4856 (Developmental Counseling Form), dated 7 November 2013 
. medical treatment records (20 pages) 
. DD Form 214, for the period ending 26 January 2014 
. ABCMR Record of Proceedings related to Docket Number AR20140020570, 
dated 9 January 2015, with associated documents 
. Defense Finance and Accounting Service (DFAS) documentation 
. VA recoupment documentation (9 pages) 
. an extract from Military Pay E-Message 13-093 and Title 10, U.S. Code (USC), 
Section 1174 
FACTS: 
1. 
The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (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 separation code should be changed due to his combat injuries, including post-traumatic stress disorder (PTSD), a traumatic brain injury (TBI), leg and back injuries, and hypertension. The documents provided show these conditions were incurred in a combat zone. 

3. 
In an unsigned, undated statement, the applicant's wife provides the following information: 


a. 
The applicant had a fracture to his tibia and fibula in 2006 that initially had screws inserted and later, a rod. 

b. 
While deployed to Iraq in 2007-2008 with a Special Forces unit (Task Force Ghost), the applicant participated in air assaults into villages to capture and interrogate high value targets. He was involved in several firefights, detonated weapons and gas caches, and called in air support to blow up buildings where intelligence led them to insurgents. 

c. 
He saw a lot of dead children and had kids and women trying to kill them.  He witnessed and was the first on the scene, and performed life saving techniques on one Soldier in the unit who was shot while repelling. He also witnessed Soldiers on foot being blown up by roadside bombs and vehicles being hit by improvised explosive devices (IEDs); some Soldiers did not survive. 

d. 
He was deployed to Iraq in 2010, where he served as a vehicle commander of a Striker vehicle.  There was one incident on patrol, in which a vehicle did not want to stop; he took measures to see that it stopped. His lieutenant told him he was being too aggressive and it was scaring the locals. This was a part of Operation New Dawn. 

e. 
He deployed to Afghanistan in 2012 and at Salerno, he was medically evacuated after his guard tower was rocketed; the last thing he remembered was bull riding in high school and he stated they had eight kids and had only been married a year. These statements are not true but since this point, he became confused and nothing made sense. He was misdiagnosed with Asperger's (a neurodevelopmental disorder characterized by significant difficulties in social interaction and nonverbal communication, along with restricted and repetitive patterns of behavior and interests). The Warrior Transition Unit (WTU) later attributed this behavior to his TBI and treatment for PTSD. 

f. 
He relates an incident in which the platoon sergeant lost his side arm in sector and they went back to find it.  The applicant was driving, the navigator got them lost, and they drove through a minefield.  They drove over one IED that did not go off as they passed; however, a vehicle behind them tripped it. They later found the pistol in the door of the vehicle the platoon sergeant was in, after that point his only focus was to do his job, go to the gym, and communicate with family at home.  He didn't want any part of friendships at work. 

g. 
It is noted in his medical evaluation that he was rated as having a moderate TBI and he was also treated for PTSD and back pain. He was sent to the WTU and 


returned to his unit fit for duty. After a ruck march, his leg finally gave out and he saw the orthopedic specialist. 
h. 
He did physical therapy and had several injections, the specialist stated that there wasn't anything more they could do and recommended he be considered by a medical evaluation board (MEB).  

i. 
Captain (CPT) Bxxxx spoke to the orthopedic surgeon, who noted the conversation. The CPT stated that the applicant had only six weeks left in service and that he had been out of the service once before and had reenlisted. This was not true and needs to be corrected in his medical records as it resulted in the applicant not being medically boarded. 

j. 
A bar to reenlistment was placed on the applicant because he was not medically able to hold a leadership position or carry out the duties of his current military occupational specialty (MOS), due to his permanent profile for the injury to his leg. 

k. 
He suffered three concussions on duty and had seizures and high blood pressure; these conditions were all seen at the emergency room and sick call.  An emergency room doctor referred him to the TBI clinic. 

l. 
The PTSD, TBI, high blood pressure, and seizure activity all started after he was medically evacuated home, all stemming from combat and the guard tower being rocketed. The chain of command and primary care doctor denied him an (MEB).  He filed an ICE complaint because the chain of command would not allow him time to seek medical treatment, except for on his own time but they were giving him 24 hour duties, and for CPT Bxxxx's refusal to treat any of the conditions he suffered from. 

m. 
He went to the Inspector General (IG) over both matters. The IG helped him appeal the bar decision, and made sure that if he was separated without an MEB, he be allowed separation pay due to his combat PTSD and his physical combat injuries, and the several injuries that occurred on active duty. 

n. 
His chain of command allowed him only seven days to out process/clear post and move off post. He did receive a follow up call from the IG, and he received an email from someone in the Pentagon in May 2014, regarding separation pay.  The applicant did not check or respond to his e-mail til 23 November 2014. 

o. 
He was rated by the VA in July 2015 as 100% disabled and he is no longer able to work due to his TBI, PTSD, and his leg and back.  He requires a 24/7 caregiver and his VA disability is his only source of income. 

p. 
He received notice of recoupment in May of 2017, filed for hearing, and filed for hardship. As a result of his service injury, he had to have his leg amputated in October 2018 and was afforded a hearing in December 2018. During his hearing, it was decided to send the Pentagon documentation to correct his records to show the separation pay was due to combat injuries and that the separation pay is not owed back. Hardship should also be taken into consideration as the VA is their only source of income. He is now receiving a VA 100% Permanent and Total evaluation. 

q. 
The documents referenced in statement are not attached to the available statement. 


4. 
The applicant enlisted in the Regular Army on 9 March 2006.  He deployed to Iraq from on or about 30 April 2010 to on or about 3 August 2010, and to Afghanistan from on or about 5 August 2012 to on or about 25 December 2012. 

5. 
The applicant's official military personnel file (OMPF) does not include his service medical record, his separation processing documentation, or his Enlisted Record Brief. 

6. 
Orders 310-0614, issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell on 6 November 2013, assigned the applicant to the separation transition point effective 26 January 2014, and to be discharged effective the same date. 

7. 
The applicant was honorably discharged on 26 January 2014. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 4. His DD Form 214 further shows: 


. he was discharged in the rank/grade of specialist/E-4 
. he served in military occupational specialty 11B(Infantryman), for seven years 
and five months 
. he had seven years, 10 months, and 18 days of active service 
. he was entitled to half involuntary separation pay 
. his separation code was "JGH" 
. his narrative reason for separation was "non-retention on active duty" 
8. 
The ABCMR reviewed the applicant's request for separation pay and a previous case.  The Record of Proceedings in ABCMR Docket Number AR20140020570, dated 7 January 2015, shows he was granted entitlement to half separation pay in the amount of $11,408.31. A DD Form 215 (Correction to DD Form 214) was issued and the decisional document was referred to DFAS for implementation. 

9. 
DFAS completed its actions on 28 January 2015 and issued the payment and a pay voucher. 

10. 
The VA received notification of the separation pay and initiated recoupment actions in accordance with law. In its denial of the applicant's request for a waiver of the recoupment, the VA notified the applicant that the law requires the pay offset or recoupment and that they do not have the authority to grant this type of request. 

11. 
The applicant requested a personal appearance hearing before the VA on 28 May 2017. The available records do not indicate whether this hearing occurred. 

12. 
The applicant's current application to the ABCMR concerns the correction of the separation code shown on his DD Form 214, and the granting of a waiver of the recoupment of his separation pay. 

13. 
The authority granted by Title 10, USC, Section 1552 is not unlimited. The ABCMR has the authority to correct only Army records. The Board has no authority to correct records created by the Department of Defense, other branches of the Services, VA, or any other governmental agency.  Therefore, the ABCMR does not have the authority to override the VA determination on the issue of restitution of his recouped separation pay. 

14. 
The applicant provided a copy of Military Pay E-Message 13-093, with the subject line: Requirements for the Release of Separation Pay and a portion of Title 10, USC, Section 1174. 

15. 
On the issue of correction of the applicant's separation code, the complete citation of the Separation Authority is not of record, and the available records do not provide the specific reason for the narrative reason for applicant's separation. By requesting a change of his separation code, the applicant would also need the separation authority and narrative reason for separation changed, as these entries drive the appropriate separation code. 

16. 
The available record does not contain an explanation for his command's use of the narrative reason "non-retention on active duty." While the applicant contends his separation code should show he received combat injuries, including PTSD, TBI, leg and back injuries, and hypertension, there is no specific separation code for this type of entry and there is no available evidence he was considered for a disability separation. 

17. 
MEDICAL REVIEW: 


The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS).  The ARBA Medical Advisor made the following findings and recommendations: 
a. The applicant is applying to the ABCMR requesting, in essence, referral to the Disability Evaluation System and a medial retirement citing.  He states: 
“Involuntary separation should be changed due to combat injuries of PTSD, TBI, leg, back, and hypertension.” 
b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army 
on 9 March 2006 and was honorably discharged on 26 January 2014 under the separation authority provided in chapter 4 of AR 635-200, Active Duty Enlisted Administrative Separations (17 December 2009).  The narrative reason for his discharge is “Non-Retention on Active Duty.” The separation code of JGH denotes the same. The DD 214 shows he served in Iraq from 15 September 2007 to 28 October 2008 and again from 30 April 2010 thru 3 September 2010.  He served in Afghanistan from 5 September 2012 thru 25 December 2012. 
c. 
His pre-entrance Report on Medical Examination shows him to have been without significant medical conditions. 

d. 
AHLTA shows the applicant sustained a distal tibia fracture in October 2006 which was surgically stabilized with an intramedullary nail.  He is noted to have had a fairly good result at his final orthopedic appointment on 5 June 2007: 


“The patient continues to improve although he does have continued c/o {complain of} anterior knee pain with kneeling and has difficulty running pain free approximately four miles and rucking greater than six miles. The patient is an 11B soldier.  In addition, the patient does have some c/o heat and cold temperature changes in his leg especially in the mornings upon waking; however, this is resolved somewhat with use of a compressive stocking.” 
e. 
Anterior knee pain is the most common complication of tibial intramedullary nails, seen is seen in approximately 47% of patients two years after surgery ( E.,  C.,  P.: Incidence and aetiology of anterior knee pain after intramedullary nailing of the femur and tibia; the Journal of Bone and Joint Surgery; 88(5): 576-80).  Resolution of anterior knee pain is variable after nail removal.  April 2013 radiographs show the nail was still in place. 

f. 
The applicant was seen on several occasions in 2013 for a reported six year history of bilateral knee pain. The assessment from orthopedics on 24 June 2013 was this could be expected following his surgery and that surgical intervention, to include 


nail removal or even arthroscopy/chondroplasty, would not “significantly alter his pain level.” A permanent non-duty profile limiting running was issued. 
g. The applicant was first seen for a behavioral health issue in December 2008. The provider wrote: 
“Patient in for walk in appointment. He got married just prior to deployment, marriage broke up while deployed.  He returned from Iraq approximately one month ago.  Patient has a new girlfriend who has serious medical issues.  He said that he has a history of childhood abuse.” 
h. 
He was diagnosed as having adjustment disorder with depressed mood.  He was seen eleven more times, with his final encounter during this period occurring on 9 June 2009.  His treatment consisted of counseling and one prescription medication. 

i. 
The applicant was next seen for a behavioral health concern on 6 November 2012 while he was deployed in Afghanistan.  This visit was again related to family issues.  He was seen for counseling/therapy six more times during November. 

j. 
When he was seen on 4 December 2012 by the same provider, she noted signs/actions she felt were consistent with Asperger’s disorder. The applicant also stated that he was irritated because he company had taken away the then SPC promotable status.  The provider wrote: 


“SM states that the company took away his promotable status and that "the next day, they dropped a bomb shell on me and that I have to make my E5 before 13 months." 
k. 
The provider completed a battery of psychological testing on 12 December 2012 after which she confirmed her diagnosis of Asperger’s disorder. For an unknown reason, it was decided the applicant should return to the United States.  A Patient Movement Record shows the applicant was medically evacuated from Afghanistan for this new diagnosis of Asperger’s disorder.  He was placedin the Warrior Transition Battalion at Fort Campbell for approximately 3 weeks, being reassigned to an infantry unit effective 16 January 2013. 

l. 
He continued to be seen by mental health during which time his diagnosis changed to unspecified mental disorder, to anxiety, and finally occupational problem in June 2013.  It remained occupational problem for the next thirteen encounters thru 5 November 2013.  At his final visit on 13 November 2013, he was diagnosed with adjustment disorder and cleared for discharge from the military.  The provider wrote: 


“SM reports he has a job lined up operating machinery and driving trucks. He plans to stay in this area with close friends for support. Has plans to stay with friend until he finds his own place.  He reports a supportive wife and children, two (ages 2 and 3) with him and two with ex. in Oklahoma.” 
m. 
AHLTA shows the applicant was diagnosed with hypertension after his five-day blood pressure check was completed on 17 June 2013.  He was started on medication that day. 

n. 
AHLTA shows the applicant was interested in entering the DES process in mid­2013.  He was seen by a provider on 4 October 2013 for an evaluation and discussion 


of the DES.  The provider noted the applicant’s presenting issue as referral to the DES for TBI. The provider completed a thorough review of the applicant’s records: 
1. 
I consulted patient to TBI for testing {see below}. A thorough scrub of his hard-copy records, AHLTA records, and PDHA/PDHRAs {post-deployment health assessments / post deployment health reassessments} shows a mention of being kicked by a bull at 22 with no LOC {loss of consciousness}. 

[ Note: PDHAs are completed upon redeployment, and PDHRAs are completed later, about 6 months after redeployment.] 

2. 
His PDHAs and PDHRAs refute each other as on two PDHAs he mentions no exposures to blasts and at later dates on PDHRAs he mentions being near a blast with no LOC and no signs/symptoms of TBI. 

3. 
His latest consult with TBI neurology at Landstuhl after he was evacuated from theater for psychological problems, reported a "kick to head by bull at 22" with no other exposures to blasts. 

4. 
The lengthy changes to story not corroborated by medical records or sign/symptoms, cause me to doubt the veracity of his claims. The patient has had all previous attempts at MEB not come to fruition, so one must include in the differential, secondary gain.” 


o. 
The provider completed a complete physical examination, to include a thorough neurological examination, and did not find evidence of TBI residuals or conditions which failed medical retention standards. 

p. 
The applicant was first seen for a history of traumatic brain injury on 27 November 2013, two months prior to discharge.  During a previous evaluation by mental health, the applicant reported “that at age 26 he "blacked out" for 30 seconds when he 


was kicked in the head by a bull.” That was not reported at this visit according the TBI provider’s written history: 
“SM {service member} reports during his third deployment a grenade blasted very close, he reports being confused and had tinnitus for days. He conveys the incident that is well documented in AHLTA from October, he was seen in the EC, however, it is clear there was no sign of trauma to his head, based on the EC physician's report. 
SM reports difficulty falling and staying asleep feeling unrested when he awakes difficulty with remembering things and difficulty staying focused difficulty dealing with loud noises ... SM reports symptoms such as the fact that he feels that he trips often, that he has some neurologic issue with his lower extremities. He reports headaches increase with stress and result from cervical spine pain. He reports significant difficulty with memory and dizziness.” 
q. He underwent testing and his follow-up visit on 5 December 2013 showed mixed 
results. The applicant’s main complaints at this visit were tinnitus and sleep issues.  He was released without limitations and directed to follow up “as needed with PCM {primary care manager} and/or in the TBI FAMILY PRACTICE clinic.” 
r. 
There is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System.  Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. 

s. 
Paragraph 3-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012) states: 


“The mere presence of an 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.” 
t. The applicant states and a review of his records in JLV shows that the VA has awarded him multiple service connected disability ratings.  However, the Disability Evaluation System only compensates disabilities when they cause or contribute to career termination. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions incurred during or permanently aggravated by their military service.  These roles and authority is granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. 
u. It is the opinion of the ARBA medical advisor that a referral to his case to the DES is not warranted. 
BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, 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 separation code and/or restoration of his separation pay.  
BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :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. 

Revoked certificate 
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. 
REFERENCES: 
1. 
Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 

2. 
Title 10, U.S. Code, Section 1174, provides that a Regular enlisted member of an Armed Force who is discharged involuntarily or as the result of denial of the reenlistment of the member and who has completed six or more but less than 20 years of active service immediately before that discharge is entitled to separation pay computed under subsection (d) unless the Secretary concerned determines the conditions under which the member is discharged do not warrant payment of such pay. It also states that enlisted members being involuntarily separated from active duty, in order to become eligible for separation pay, must enter into an agreement to serve no less than three years in the Ready Reserve. This section specifies that the Ready Reserve service must occur "following the person's discharge or release from active duty." 

3. 
Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

4. 
Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from 


active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214 and states: 
a. 
 The entry for the Separation Authority is obtained from regulatory or directives authorizing the separation. 

b. 
 The entry for the Separation Code is based on the regulatory authority and reason for separation. 


5.  Army Regulation 635-5-1 (Separation Program Designator) provides that: 
. the separation code "JEA" applies to Soldiers who are separated for Disability, Severance Pay Combat Related (Enhanced) without entitlement to separation pay 
. the separation code "JGH" applies to the narrative reason for separation "Non-Retention On Active Duty" with entitlement to separation pay 
6. 
 Army Regulation 635-200, Chapter 4 provides the policies and procedures for Soldiers separated upon expiration of enlistment or fulfillment of service obligation. Paragraph 4–6 (Separation authority) states separations will be accomplished by the transition point processing the Soldier for separation per the separation orders issued by the appropriate commander. 

7. 
 Military Pay E-Message 13-093, Subject: Requirements for the Release of Separation Pay states in part: 


a. 
 The purpose of this message is to provide the Defense Military Pay Offices  Financial Management Support Units, U.S. Property and Fiscal Offices, and USAR Pay Centers, and DFAS Employees instruction on the requirements for receipt of Separation Pay. 

b. 
When a Soldier separates from the Army after completing at least six years but not more than 20 years of active duty, they may be entitled to receive half or full separation pay upon separating from the Army. The eligibility requirements. are laid out in the DoD Financial Management Regulation Volume 7A, Chapter 35 and 10 USC 1174.  One of the requirements is the Soldier must enter into a written agreement to serve a minimum of three years in the Ready Reserve of the service concerned. This agreement must be entered into prior to the Soldier's release from active duty. 


8.  An online DoD Disability Severance Pay facts sheet states: 
The Secretary of the Army may separate, versus retire, a Soldier who is found physically unfit to perform their duties due to a disability. Separation may occur with entitlement to disability severance pay or without entitlement to disability benefits. Separation with disability severance pay occurs when the Soldier's unfitting disabilities are determined by the Army to be service connected, the Soldier has less than 20 years of service as computed under 10 USC 1208, and the Soldier's combined disability rating assigned to the unfitting disabilities is less than 30 percent. Separation without entitlement to disability benefits occurs when the unfitting disabilities are determined to be non-service connected without permanent aggravation or incurred due to misconduct. Soldiers of the Ready Reserve with 20 qualifying years and Soldiers of the Selected Reserve with 15 qualifying years with a disability disposition of separation with or without severance pay have an additional election in lieu of being separated. 
To be entitled to disability severance pay, the Soldier's unfitting disability must meet the criteria below. 
. The disability is permanent or may be permanent. Unlike the criteria for permanent disability retirement or placement on the Temporary Disability Retirement List (TDRL), whether the disability is stable is not a consideration. 
. For Soldiers serving on active duty under an order to active duty of more than 30 days, the disability must be incurred while the Soldier was entitled to basic pay, or incurred while the Soldier was in an excess leave status due to an emergency reason, or incurred due to an authorized absence to participate in an educational program. 
. The disability is not the result of the member's intentional misconduct or willful neglect and was not incurred during a period of unauthorized absence. 
The amount of disability severance pay received under Title 10 USC Subsection 1212 may be subject to recoupment by the VA. The member should contact the applicable VA office for more information. Effective January 28, 2008 and later, no deduction is made in the case of disability severance pay received by a member for a disability incurred in the line of duty in a combat zone or incurred during performance of duty in combat-related operations as designated by the Secretary of Defense. 
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