IN THE CASE OF: BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160007531 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 IN THE CASE OF: BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160007531 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. IN THE CASE OF: BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160007531 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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her service was characterized as honorable versus uncharacterized and to show she was discharged for medical disability versus showing she was discharged due to entry level status performance and conduct. She further requests a personal appearance before the Board. 2. The applicant states, in effect, that on 11 July 2013, the Department of Veteran Affairs (VA) determined her adjustment disorder was related to her military service and service-connected status was granted. Due to the service-connected disability, her character of service was upgraded to honorable and should be reflected on her DD Form 214. Upon her discharge, she was given a medical recommendation for a chapter 11 by Community Mental Health Services (CMHS); therefore, due to service-connected disability, her narrative reason should reflect that she was medically discharged from the service. 3. The applicant provides: * two DA Forms 4856 (General Counseling Form), dated 5 February 1999 and 17 February 1999, respectively * DA Form 3822-R (Report of Mental Status Evaluation), dated 17 February 1999 * memorandum from her Commander, dated 18 February 1999, subject: Proposed Separation Action [Under the Provisions of Army Regulation] 635-200 [Personnel Separations – Enlisted Personnel], Chapter 11, Entry Level Status Performance and Conduct * DD Form 214 for the period ending 24 February 1999 * VA Rating Decision, dated 20 March 2014 * VA Compensation Letter, dated 9 April 2014 * VA Statement of the Case in the Appeal of [Applicant], dated 24 August 2015 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 U.S. Army Reserve (USAR) on 11 August 1998. She entered initial active duty for training on 19 January 1999. 3. The applicant was counseled by her chain of command on 5 February 1999. A DA Form 4856 shows she was counseled on her requirements to successfully complete basic training. One of the questions asked of her was: "Do you have any personal problems that I need to know about or that may affect your performance here in Basic Combat Training?" The applicant checked beside the "No" response. Additionally, she concurred and signed the counseling form on the same day. 4. The applicant underwent a mental status evaluation on 17 February 1999. A DA Form 3822-R shows she was referred to mental health and evaluated by a licensed psychologist, who stated her behavior was normal and fully alert, with depressed mood and affect. She was clear and normal in thinking process and thought content with good memory. She was mentally responsible and had the mental capacity to understand and participate in any proceedings. She was diagnosed with "adjustment disorder with depressed and anxious mood." It was the professional opinion of the medical provider that her problem would not respond to command efforts at rehabilitation (such as transfer, disciplinary action, or reclassification) nor to any treatment methods available in any military mental health facility. It additionally stated: * she had a remarkable history of poor coping skills; she was experiencing mild depression and agitation * she had a history of depression (had taken depressive medication) * there was no history of suicide attempts or homicidal ideation * she was no longer motivated to train; she would be a significant training distraction * she was psychiatrically cleared for any action deemed appropriate by the command * she should be processed for expeditious administrative separation in accordance with Army Regulation 635-200, chapter 11 * the command should modify her duty to reduce stress on her 5. The applicant was counseled by her chain of command on 17 February 1999. A DA Form 4856 shows she was counseled by her chain of command for entry level separation, as recommended by the CMHS medical professional. The applicant concurred with the counseling and signed the form the same day. 6. The applicant's complete separation packet is not available for review in this case. However, she provides a memorandum from her commander, dated 18 February 1999, which shows she was notified that he was recommending her separation from the Army under the provisions of Army Regulation 635-200, chapter 11, due to entry level status performance and conduct. Her commander stated that the specific reason for the proposed separation action was her adjustment disorder with depressed and anxious mood. 7. The applicant was discharged on 24 February 1999. The DD Form 214 she was issued shows the following entries in: * Item 23 (Type of Separation) – Discharge * Item 24 (Character of Service) – Uncharacterized * Item 25 (Separation Authority) – Army Regulation 635-200, chapter 11 * Item 28 (Narrative Reason for Separation) – Entry Level Performance and Conduct 8. Orders 053-1310, issued by Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, SC on 23 February 1999, discharged the applicant from the USAR effective 4 February 1999. 9. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations. 10. The applicant provides: a. A VA Rating Decision, dated 20 March 2014, which shows the VA awarded her a 30 percent service-connected disability rating for adjustment disorder (also claimed as depressed and anxious mood), effective 11 July 2013. b. A VA Compensation Letter, dated 9 April 2014, which shows entitlement amounts of compensation from her disability claim. c. A VA Statement of the Case in the Appeal of [Applicant], dated 24 August 2015, which explains the laws and regulations as well as the appeal process and provides instructions to the applicant in completing her appeal. REFERENCES: 1. 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. 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. 2. Army Regulation 635-200 prescribes policies, standards, and procedures providing for the orderly administrative separation of active duty enlisted Soldiers. a. Chapter 3 states a separation will be described as entry level with uncharacterized service if the Soldier has less than 180 days of continuous active duty service at the time separation action is initiated. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Chapter 11 provides for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. When separation of a Soldier in an entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, he or she will normally be separated per this chapter. Service will be uncharacterized for entry-level separation under the provisions of this chapter. 3. Title 38, United States 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 medically unfitting 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. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. DISCUSSION: 1. The applicant requests correction of her DD Form 214 to show her service was characterized as honorable versus uncharacterized and to show she was discharged for medical disability versus showing she was discharged due to entry level status performance and conduct. 2. The evidence of record shows that less than two months after the applicant entered active duty for training, she was referred to mental health and was evaluated by a licensed mental health provider and diagnosed with adjustment disorder with depressed and anxious mood. The examining medical professional stated she had a history of depression and she had a history of poor coping skills. This suggests her medical condition existed prior to her entry into military service. 3. The examining medical professional cleared the applicant for any administrative separation action and recommended she be processed for separation under the provisions of Army Regulation 635-200, chapter 11, for entry level status performance and conduct, as she would not respond to command efforts nor to any treatment methods currently available in any military health facility. Her commander counseled her on his recommendation that she be separated from the Army, and she concurred with the counseling. 4. She contends her DD Form 214 should be corrected to show her service was honorable and the reason for her separation was medical disability, since the VA determined her condition to be service-connected and rendered her a disability rating. 5. The evidence of record shows she was in an entry-level status (the first 180 days of continuous active service) at the time of her separation. As a result, her service was appropriately described as "uncharacterized" in accordance with governing regulations. An uncharacterized discharge is not meant to be a negative reflection of a Soldier's military service. It simply means the Soldier has not served on active duty long enough for his or her character of service to be rated as honorable or otherwise. 6. An honorable discharge may be granted only in cases that are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. There are no such circumstances present in her records. 7. A disability rating by the VA does not establish error or injustice on the part of the Army. Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. The VA may award ratings because of a medical condition related to service (service-connected) and its effect on the individual's civilian employability. 8. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 9. The applicant's request for a personal appearance hearing was carefully considered. However, 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 are sufficient to render a fair and equitable decision at this 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) AR20160007531 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160007531 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2