BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20160003801 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: 22 June 2017 DOCKET NUMBER: AR20160003801 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 referring his records to the Office of the Surgeon General for assessment and evaluation to determine if he should be considered by a medical evaluation board and physical evaluation board. In the event of a favorable determination, these proceedings serve as the authority to void his administrative separation and issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay. 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 medical retirement at this time. _________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: 22 June 2017 DOCKET NUMBER: AR20160003801 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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired due to a service-connected physical disability. 2. The applicant states he was "chaptered out" of the military due to his post-traumatic stress disorder (PTSD) symptoms and assessments. He was never informed of the opportunity to go before a medical evaluation board (MEB). His paperwork indicates he waived his right to an MEB. He was never told about the MEB and never received any help for his PTSD based on service in Iraq. Shortly after his discharge, he had to try to get help on his own. In 2004, he was given a 60-percent disability rating which continued to get worse. As of 2011, he is 100-percent disabled due to PTSD. 3. The applicant provides: * Diagnostic Assessment, Fort Campbell, Kentucky, dated 21 October 2003 (3 pages) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 21 January 2004 * Patient Review Past Note, Pinnacle Family Care, dated 24 March 2010 (2 pages) * Summary of Treatment, Pinnacle Family Care, dated 20 July 2010 (2 pages) * Department of Veterans Affairs (VA) Rating Decision and Associated documents (9 pages) 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. On 8 August 2001, the applicant enlisted in the Regular Army. He completed his initial training as an infantryman. 3. The applicant's records show he served a tour of duty in the Republic of Korea in 2001 and 2002, and he deployed to Kuwait/Iraq in 2003. 4. The applicant's discharge packet is not available for review. His DD Form 214 shows he was administratively discharged on 21 January 2004 under the provisions of Army Regulation 635-200, paragraph 5-17, due to a physical condition, not a disability. His service was characterized as honorable. He completed 2 years, 5 months, and 14 days of creditable active duty service. This form also shows the following entries: * item 26 (Separation Code) – "JFV" * item 27 (Reentry Code) – "3" 5. The VA Rating Decision provided by the applicant indicates he was rated as 50-percent disabled in 2007 for PTSD, which was increased to 100 percent in 2011 with an effective date of 8 April 2010. 6. In the processing of this case, an advisory opinion was rendered by the Army Review Boards Agency Senior Medical Advisor. Based on the applicant's electronic medical record and documents provided by the applicant which included VA clinic notes, VA Rating Decision, and a statement from the Pinnacle Family Care, he concluded: a. the applicant met medical retention standard at the time of his discharge, b. the applicant's medical conditions were duly considered during his separation processing, and c. a review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the applicant's discharge in this case. 7. On 28 April 2017, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. No response was received. REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) provides that the Board 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. 2. Army Regulation 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. 3. Army Regulation 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 Army Regulation 635-200, paragraph 5-17, based on a condition, not a disability. 4. Army Regulation 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 Army Regulation 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 Army Regulation 40-501, chapter 3. 5. Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. DISCUSSION: 1. The applicant contends that his records should be corrected by showing he was retired due to a medical disability because he was he was not provided the opportunity to go before an MEB. 2. Because the applicant's medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for a medical retirement or separation. 3. An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability. Furthermore, 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 Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. 4. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003801 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003801 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2