BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20160002526 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: 14 November 2017 DOCKET NUMBER: AR20160002526 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: 14 November 2017 DOCKET NUMBER: AR20160002526 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 correction of item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was retired due to physical disability instead of "Physical Condition, Not a Disability." He also requests a personal appearance before the Board. 2. The applicant states he reenlisted in South Korea with the intent of making the Army a career after the 11 September 2001 attacks. When he arrived at his next duty assignment he was diagnosed with bipolar disorder and chaptered out for the disorder. He is currently rated as 70 percent service-connected, permanently disabled, and totally unemployable by the Department of Veterans Affairs (VA) for bipolar disorder and a host of other service-connected mental health disorders. His current discharge denies him benefits such as the Post 9-11 GI Bill and other benefits he believes he is entitled to because he was discharged due to the same disorder now effecting his life. He has received adequate mental health assistance and he is currently aware and mentally focused enough to understand the injustice and ramifications of his discharge. He was too mentally distraught and sick to see the error before now. 3. The applicant provides three letters. 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, 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 (RA) on 30 May 1995 for 3 years with prior U.S. Army Reserve enlisted service. He held military occupational specialties 91B (Medical Specialist) and 12B (Combat Engineer). 3. He was promoted to sergeant/E-5 on 1 September 1998 and he served in Korea from 18 February 2001 to 10 March 2002. 4. A DA Form 3340-R (Request for Reenlistment or Extension in the RA), dated 9 May 2001, shows his request for reenlistment was approved. As such, he reenlisted in the RA at Camp Casey, Korea, on 5 June 2001. 5. He also served in Italy from around March 2002 to December 2004. He was assigned to the 501st Forward Support Company in Vicenza. 6. His record is void of the complete facts and circumstances surrounding his discharge; however, his records contain: a. DD Form 2648 (Preseparation Counseling Checklist), dated 4 October 2002, showing he received counseling on all of his transition benefits and services. b. Orders 352-001, issued by the U.S. Army European Task Force, Vicenza Transition Center, dated 18 December 2002, discharging him from the RA effective 30 December 2002, with entitlement to half separation pay. c. A DD Form 214 honorably discharging him from active duty in pay grade E-5 effective 30 December 2002. This form shows in: * Item 25 (Separation Authority) – Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-17 * Item 26 (Separation Code) – JFV * Item 28 – Physical Condition, Not a Disability 7. He provided two letters that appear to have been written to the VA and a Privacy Act document provided to his Member of Congress giving him permission obtain information concerning his appeal to this Board. 8. On 4 April 2017, the Army Review Boards Agency, requested the applicant provide his VA and private medical records to this Board for consideration. He did not respond. 9. On 19 October 2017, an advisory opinion was provided by an Army Review Boards Agency (ARBA) psychologist. The ARBA psychologist stated the ARBA Case Management Division requested a review of this case for a determination if the applicant's medical conditions were duly considered during his separation processing. The ARBA psychologist also stated: a. The Armed Forces Health Longitudinal Technology Application records was not in use at time of the applicant's service. Based on the information available for review at the time, there was insufficient information to determine if the applicant's medical condition warranted a change to the narrative reason for separation from a "Physical Condition, Not a Disability." A review of VA medical records indicated post-service diagnoses of post-traumatic stress disorder, attention deficit hyperactivity disorder, personality disorder, and bipolar disorder, for which he has a 70 percent service-connected disability rating. b. Although the applicant contends the diagnosis of bipolar disorder led to his early separation from the Army, his military records are void of the specific facts and circumstances surrounding his discharge, to include the impact of the medical condition on his ability to effectively perform military duties. Without additional medical records or other documents from during his time of service, a decision cannot be rendered in this case. 10. The advisory opinion was provided to the applicant on 24 October 2017 for acknowledgement/rebuttal. He did not respond. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic policy for the separation of enlisted personnel. Chapter 5, paragraph 5-17 stated, commanders who are special court-martial convening authorities could approve separation under that paragraph on the basis of 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 could be separated for physical or mental conditions not amounting to disability, sufficiently severe that the Soldier's ability to effectively perform military duties was significantly impaired. Members separated under this provision of the regulation will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, governed the evaluation of physical fitness of Soldiers who could be unfit to perform their military duties because of physical disability. It stated Medical Evaluation Boards were convened to document a Soldier's medical status and duty limitations insofar as duty was affected by the Soldier's status. A decision was made as to the Soldier's medical qualification for retention based on the criteria in AR 40-501 (Standards of Medical Fitness), chapter 3. 3. AR 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, stated that SPD codes were three-character alphabetic combinations which identified reasons for and types of separation from active duty. The "JFV" SPD code was the correct code for Soldiers separating under paragraph 5-17 of AR 635-200 and "Physical Condition, Not a Disability" was the corresponding entry for the narrative reason for separation. 4. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. 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. The VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. 5. AR 15-185 (ABCMR), paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the Board. The Director or the ABCMR may grant a formal hearing whenever justice requires. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. 2. The applicant's record is void of the complete facts and circumstances surrounding his discharge. However, it appears that following a diagnosis of a physical or mental condition not amounting to disability, his chain of command determined that his condition could potentially interfere with assignment to or performance of duty. As a result, his chain of command initiated administrative separation action against him for a physical or mental condition not amounting to a disability. 3. His narrative reason for separation was assigned based on the fact that he was separated under the provisions of AR 635-200, paragraph 5-17, due to a medical condition - not a disability. Absent this condition, there was no reason to process him for administrative separation. In the absence of evidence to the contrary, it is presumed that his administrative separation was accomplished in compliance with applicable regulations with no procedural errors that would jeopardize his rights. 4. By regulation, a Soldier must be found unfit to reasonably perform the duties of his or her office, grade, rank, or rating because of physical disability in order to be considered for processing for a medical discharge/retirement through the Army. The ARBA psychologist opined the applicant's record was void of information to determine if his medical condition warranted a change to the narrative reason for separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002526 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002526 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2