ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS X BOARD DATE: 26 April 2019 DOCKET NUMBER: AR20160010449 APPLICANT REQUESTS: * in effect, referral to a physical evaluation board (PEB) so it can reach a fitness determination, based on a previous medical evaluation board's (MEB) finding his post-traumatic stress disorder (PTSD) failed medical retention standards * in effect, assuming the PEB finds the applicant unfit, amend the following entries on his DD Form 214 (Certificate of Release or Discharge from Active Duty) so they are consistent with a medical separation/retirement: separation authority; separation code (SPD); narrative reason for separation; and reentry (RE) code * upgrade his general discharge under honorable conditions to honorable * permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Exhibit 1 – signed authorizations * Exhibit 2 – Hagel Memo, dated 3 September 2014 * Exhibit 3 – MEB Proceedings and Report, dated 20 September 2006 * Exhibit 4 – Medical Records/Diagnoses from Department of Veterans Affairs (VA) Medical Center, dated 21 March 2008 * Exhibit 5 – Statement from Staff Sergeant (SSG) Tr__ M. Al__ * Exhibit 6 – DD Form 214, ending 31 May 2005 * Exhibit 7 – DD Form 214, ending 10 January 2007 * Exhibit 8 – Army Commendation Medal (ARCOM), dated 14 October 2003 * Exhibit 9 – ARCOM, dated 13 January 2004 * Exhibit 10 – DA Form 638 (Recommendation for Award) for Army Achievement Medal, dated 10 September 2003 * Exhibit 11 – Army Good Conduct Medal with Permanent Orders (PO), dated 19 May 2005 * Exhibit 12 – Combat Action Badge with PO, dated 12 October 2005 * Exhibit 13 – Two Enlisted Record Briefs, respectively dated 27 April 2005 and 10 October 2006 * Exhibit 14 – Decision letter denying upgrade request, dated 6 August 2012 * Exhibit 15 – Community College transcripts, dated 26 August 2012 * Exhibit 16 – College transcripts, dated 26 August 2014 * Exhibit 17 – University transcripts, dated 25 August 2014 * Exhibit 18 – Applicant's personal/self-authored statement, dated 9 May 2016 * Exhibit 19 – Character Reference Statement, Lieutenant Colonel (LTC) Jo__ M. Bu__ * Exhibit 20 – Character Reference Statement, Ma__ Mi__. PhD (Doctor of Philosophy) * Exhibit 21 – Character Reference Statement, Medical Doctor S.M. E__ * Exhibit 22 – Character Reference Statement, Ke__ Wh__. PhD * Exhibit 23 – Character Reference Statement, Cr__ O__ * Exhibit 24 – Character Reference Statement, Sergeant (SGT) Ni__ Gr__ * Exhibit 25 – Character Reference Statement, Professor Ro_ R. Si__ * Exhibit 26 – Character Reference Statement, W__ D. R__ * Exhibit 27 – Character Reference Statement, Ha__ Wa__ * Exhibit 28 – Character Reference Statement, Ma_ An__ * Exhibit 29 – Character Reference Statement, Da__ S. F__ * Exhibit 30 – Character Reference Statement, Z__ R__ * Exhibit 31 – Character Reference Statement, L__ J. L__ * Exhibit 32 – Character Reference Statement, A__ B__ * Exhibit 33 – Character Reference Statement, A__ C__ * Exhibit 34 – Character Reference Statement, A__ V__ * Exhibit 35 – Character Reference Statement, L__ Z__ * Exhibit 36 – DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for rating period 200404 through 200503 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, he has PTSD, and it was a direct and substantially contributing cause of the misconduct that led to his adverse separation. Prior to his deployment, he had an exceptional record and was a trusted NCO. His post-service record is unblemished and his conduct has been outstanding. He has earned Associates, Bachelor's, and Masters Degrees, and become a stable, contributing member of his community. His counsel provides further contentions and details; stating, in effect: a. The applicant was discharged, on 10 January 2007, as a result of disciplinary problems directly attributable to his untreated PTSD. He was charged on two separate occasions with driving under the influence (DUI); in addition, medical authority diagnosed him with PTSD and referred him to an MEB. The applicant remained on active duty, despite his behavioral health concerns, until he was eventually discharged. b. In September 2014, the Secretary of Defense issued guidance that essentially required BCMRs to consider if PTSD could have been present at the time of a Veteran's adverse separation, and whether it might reasonably have contributed to the misconduct resulting in discharge. c. On 20 September 2006, the applicant was diagnosed and treated for PTSD; he continued treatment at a VA Medical Center for 2 years after his separation. He incurred PTSD while deployed to Iraq in support of Operation Iraqi Freedom; in 2004, while participating in a bridge clearing operation, he was knocked unconscious by an exploding IED (improvised explosive device). His combat experiences have traumatized him, and he has had great difficulty dealing with his emotions. Unfortunately, instead of providing him proper treatment, his chain of command turned its back and pushed him away in the most efficient way possible (i.e. administrative separation). d. As a result of his discharge, the applicant has been stigmatized for almost a decade; nonetheless, he has worked tirelessly to overcome the obstacles presented by his character of service. He has pursued his dream of higher education, earning Associate's, Bachelor's, and Master's degrees; in addition, he has made significant contributions to his community, as evidence by the included letters of support from both civilians and members of the military. e. Counsel elaborated on the applicant's military career, citing his deployments to the Balkans and Iraq, and enumerating his many awards and decorations. He affirmed the applicant's leadership promoted him to SGT in just 18 months, and noted the applicant was the Soldier of the Year for the Division Artillery Brigade to which he was assigned. Counsel described the applicant's struggles with PTSD and stated, during his second enlistment, he started to drink heavily; this was an attempt to self-medicate. f. In 2006, he was arrested twice in rapid succession for DUI (respectively, on 13 May and 3 June). On 14 June, a district court convicted him for DUI for one of the incidents; on 22 June, a State court convicted him for the other. At the time, the MEB process had already been initiated and Dr. W__ J. K__ determined the applicant failed medical retention standards. The applicant was referred to a PEB on 20 September 2006, however, the applicant was not permitted to complete the PEB process; his chain of command rushed him out of the Army. g. After the applicant's discharge, he petitioned the Army Discharge Review Board (ADRB) to upgrade his character of service; the ADRB denied his request in 2012. Subsequent to the ADRB's decision, the DOD released its aforementioned memorandum, dictating how cases like the applicant's should be handled, and, in effect, offering a basis to reconsider the applicant's circumstances. h. Counsel submits descriptions of the applicant's post-service accomplishments, and addressed the backgrounds of those who provided character reference letters, along with summaries of what they wrote. He asserts the applicant's PTSD should have been considered as a causative factor in the applicant's misconduct. Counsel argues, in effect, although driving under the influence of alcohol is a serious offense, its significance should be outweighed by the applicant's significant contributions to his country, and by the fact he incurred PTSD during his combat service. i. The applicant additionally provides a self-authored statement, in which he details his experiences before entering the Army, those he had during his active duty service, and he describes his significant post-service accomplishments. He states, in effect: (1) When he first came in the Army, he held the military occupational specialty (MOS) 13B (Cannon Crewmember). He excelled during training and at his unit of assignment. He describes his deployment to Iraq, to include his exposure to IEDs and horrors of combat he witnessed. He left the Army to pursue his education, but began to experience PTSD symptoms. He started to drink with other college students, but his reasons were different; he drank to feel a loss of control, like he experienced during his deployment; and he drank to self-medicate and ease the sense of isolation he felt. (2) Within 6 months, he reenlisted into the Army; he was tired of feeling lost and unimportant. He thought returning to the Army would fix the hole he felt; he planned to join the Special Forces. He did extremely well during advanced individual training (AIT) for MOS 92W (Water Treatment Specialist). However, he was not impressed with his unit, when he arrived at his Fort Knox duty station; he felt the caliber of Soldier there did not measure up against those with whom he had deployed. He decided, if his unit deployed, he would not be going along; he feared there was a gross lack of competency, and this would lead to many misfortunes. Unfortunately, his two DUIs ended up being the reasons why he did not deploy. (3) He takes full responsibility for his actions during the 2 weeks during which his DUIs occurred; he feels extremely disappointed in himself for the ignorance and arrogance of his actions. He recognizes he ignored clear signs of mental distress, and acted as if he was invincible. He is extremely grateful the outcomes of his two DUIs did not result in physical injury to anyone. (4) His grandfather asked him to speak with someone at the PTSD clinic; he was immediately diagnosed with PTSD and began outpatient treatment. He would undergo consistent therapy for the next 3 years; he is very thankful for this therapy. At the time, medical experts deemed his condition severe enough to warrant the initiation of medical separation proceedings. However, his chain of command wanted to make an example of him; a less severe punishment, the opportunity to recover, or a medical separation was not considered as options. The applicant confides, his preference was to remain on active duty; he was an excellent Soldier with great potential. (5) It took his leadership 6 months to decide what to do with him; this was the worst time of his life. He realizes two DUIs were a gross underperformance of his responsibilities as an NCO, but they represent only a tiny sample (2 weeks out 46) of his service record; the remainder of his service was exemplary. The applicant points out that he graduated from some of the nation's top universities, and has consistently been selected as, and offered himself to be a peer leader in multiple capacities, both during college and as an alumnus. In addition, he was promoted to vice president in less than 3 years of his graduation. He is married, and he and his spouse share a happy home; they hope to have children in the future. He believes he no longer is the struggling Veteran that needed help long before he got it. He asks that his discharge be aligned with his actual character and accomplishments, both in and out of the Army. 3. The applicant provides verification of his PTSD diagnosis, certificates of awards and decorations, transcripts, and 17 letters of support, all attesting to the applicant's character and significant accomplishments (both in the Army and after his discharge). 4. The applicant's service records show: a. He enlisted into the Regular Army on 15 January 2002 for a 3-year term; he held MOS 13B. He was deployed to Kosovo from 2 November until 15 December 2002; he deployed to Iraq from 15 February 2004 to 16 March 2005. On 31 May 2005, he was honorably discharged due to completion of his required active service; his DD Form 214 shows he was awarded or authorized: * Army Commendation Medal (2nd Award) * Army Achievement Medal * Nationals Defense Service Medal * Global War on Terrorism Expeditionary Medal * Army Lapel Button * Global War on Terrorism Service Medal * Kosovo Campaign Medal * Army Service Ribbon * Overseas Service Ribbon * North Atlantic Treaty Organization (NATO) Medal b. After a 7-month break in service, the applicant reenlisted into the Regular Army on 3 January 2006 for a term of 3 years and 16 weeks. After completing AIT for MOS 92Y, orders assigned him to Fort Knox; he arrived on 28 April 2006. c. On 13 May 2006, while driving his vehicle onto Fort Knox, the military police conducted an identification check and detected the strong odor of alcohol; breathalyzer testing affirmed a 0.168 alcohol level (the limit in Kentucky is 0.08). Respectively, on 14 June and 22 June 2006, civil courts convicted the applicant for driving under the influence of alcohol. d. On 27 July 2006, a general officer issued the applicant a general officer memorandum of reprimand (GOMOR) because the applicant had been apprehended for driving a motor vehicle while intoxicated. The GOMOR noted the applicant's blood alcohol content of 0.168 well exceeded the legal limit. The applicant indicated his intent to provide a written response, but that response is not available in the record. The imposing authority directed the placement of the GOMOR in the applicant's official military personnel file. e. Also on 27 July 2006, the applicant voluntarily entered treatment for PTSD and alcohol abuse at the Fort Knox Behavioral Health Clinic. f. On 18 September 2006, the applicant's Fort Knox commander informed him, via memorandum, of his intent to separate the applicant under the provisions of chapter 14 (Separation for Misconduct), Section II (Conviction by Civil Court), Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations). His stated reasons were the applicant's two civil convictions for DUI. g. On 20 September 2006, an MEB determined the applicant failed medical retention standards for PTSD and recommended referral of his case to a PEB for a fitness determination. On 25 September 2006, medical authority issued the applicant a permanent level "3" (significant limitations) physical profile for PTSD. On 27 September 2006, the applicant's PEB Liaison Officer (PEBLO) prepared a memorandum stating, per AR 645-40 (Physical Evaluation for Retention, Retirement, or Separation), the applicant's case could not be forwarded through the Army's disability evaluation system (DES) channels unless the general court-martial convening authority (GCMCA) suspended separation action. The PEBLO requested a copy of the GCMCA's decision for inclusion in the applicant's case. h. On 31 October 2006, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the proposed separation action, and informed him of his rights as well as the effect of waiving those rights. He requested counsel and elected to submit a statement in his own behalf: (1) He wrote of his prior service and participation in combat. He affirmed his return to civilian life was troubled and reenlisted because of the comradery he had felt in his previous service. (2) He acknowledged his two DUI arrests were a "wake-up call" and he had since sought treatment for PTSD. He was embarrassed by his conduct and, given his past military record and PTSD diagnosis, felt offended he might receive a general discharge under honorable conditions. He believed he merited an honorable discharge. i. On 4 December 2006, the separation authority's legal advisor found no legal objection to the commander's recommendation for separation. He indicated the separation authority was not bound by the MEB's recommendation, noting, while DES processing took precedence over administrative separation proceedings, DES disposition was only required if the separation authority determined the applicant had a physical or mental illness that directly and substantially contributed to the misconduct leading to separation. j. On 19 December 2006, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions; he did not address the results of the applicant's MEB or reflect a determination that the applicant's PTSD was not a contributing cause for his discharge action. k. On 10 January 2007, the applicant was separated with a general discharge under honorable conditions. His DD Form 214 shows he completed 1 year and 8 days of his second enlistment. His SPD was "JKB"; his RE code was "3." He was awarded or authorized: * Army Commendation Medal (2nd Award) * Army Achievement Medal * Army Good Conduct Medal (1st Award) * National Defense Service Medal * Kosovo Campaign Medal with one bronze service star * Army Service Ribbon * Overseas Service Ribbon (2nd Award) * NATO Medal * Combat Action Badge l. On 22 February 2012, the applicant petitioned the ADRB, requesting an upgrade in character of service. While he took full responsibility for his mistakes, he asserted his outstanding service and post-discharge accomplishments merited an upgrade. He contended his discharge was too harsh and that his PTSD impaired his ability to serve. On 15 June 2012, the ADRB denied his request, finding his discharge had been proper and equitable. m. On 6 February 2018, an Army Review Boards Agency (ARBA) psychologist provided an advisory opinion. (1) Based on a review of the applicant's military electronic and his VA medical records, the ARBA psychologist found sufficient evidence to support the applicant had PTSD and that his conditions failed medical retention standards such that medical separation was warranted. In addition, he verified the applicant's PTSD was present at the time the applicant committed the misconduct that led to his separation. (2) Given the available information, the ARBA psychologist was not able to conclude the applicant's PTSD mitigated his misconduct. He opined drunk driving is not a form of self-medication, rather it is criminal behavior, engaged in by a subset of those abusing alcohol. There is nothing about PTSD that would make the wrongness of driving drunk invisible, or an irresistible behavior. In the applicant's case, an intelligent man with PTSD drove while drunk not just once; he persisted until he had two DUI convictions. n. On 7 February 2018, ARBA provided the applicant a copy of the advisory opinion for review and the opportunity to submit a statement or additional evidence on his own behalf; he did not submit a response. 5. Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 6. Commanders were to consider Soldiers for discharge once a civil court initially convicted them, or took action that was tantamount to finding of guilty, after the commander determined the civilian offense for which the Soldier was convicted was authorized a punitive discharge under the Uniform Code of Military Justice, and/or the sentence included confinement of 6 or more months. Initiation of separation action was not mandatory, and the commander had to consider whether the specific circumstances warranted separation. An under other than honorable conditions character of service was normally issued, but commander could direct a general discharge under honorable conditions, when supported by the Soldier's record. 7. Both AR 635-200 and 635-40 stated DES processing took precedence over administrative separation, except in cases where separation processing could result in an under other than honorable conditions character of service. In these cases, the GCMCA was specifically required to determine if the applicant's disabling condition directly and substantially caused his/her consideration for an adverse discharge. When the GCMCA found the Soldier's disabling condition did contribute, that determination had to be documented and the Soldier was not allowed to continue DES processing. 8. SPD codes are entered on the DD Form 214 based upon the separation authority; in addition, each SPD code has an associated RE code. Per the SPD/RE Code Cross Reference Table, the correct RE code for SPD "JKM" is "3"; the table does not show any Soldiers separated due to physical disability receiving an RE code of "1." 9. The applicant accepts responsibility for his DUI convictions. He and counsel argue the quality of his service and the fact he incurred PTSD as a result of combat should outweigh his DUI convictions; the applicant highlights his significant active duty and post-service achievements. The ARBA psychiatrist verified the applicant's PTSD was present at the time the applicant committed the misconduct that led to his separation; however, based on the given information he was not able to conclude the applicant's PTSD mitigated his misconduct. He opined drunk driving is not a form of self- medication, rather it is criminal behavior, engaged in by a subset of those abusing alcohol. There is nothing about PTSD that would make the wrongness of driving drunk invisible, or an irresistible behavior. In the applicant's case, an intelligent man with PTSD drove while drunk not just once; he persisted until he had two DUI convictions. 10. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. Based upon the preponderance of evidence, and the recommendation of the advisory official, the Board agreed relief is warranted in the following manner: upgrade to honorable now; change the reentry code, separation code, change the narrative reason for separation, and refer his record to the OTSG for consideration of entry into IDES. 2. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 a. reissuing him a DD Form 214 showing his characterization of service as honorable; reentry code “RE-1”; separation code “JFF”; and reason for separation as “Secretarial Authority”; and b. referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES). (1) In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. (2) Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that 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 changing his type of discharge to medical without evaluation under the IDES, and a personal hearing before the Board. 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. ADMINISTRATIVE NOTE(S): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list awards and decorations from all periods of service. 2. Department of the Army General Order Number 58, 2014, awarded the 1st Battalion, 6th Field Artillery Regiment the Valorous Unit Award for the period 18 March 2004 to 21 February 2005. 3. As a result, amend the applicant's DD Form 214, ending 10 January 2007, by adding the following awards: * Valorous Unit Award * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Army Lapel Button REFERENCES: 1. Title 10, USC, 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 ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Chapter 14 (Separation for Misconduct) addressed separation for misconduct, to include conviction by a civil court; an under other than honorable conditions character of service was normally issued, but commanders could direct a general discharge under honorable conditions, when merited by the Soldier's record. (1) Commanders were to consider Soldiers for discharge when a civil court initially convicted them, or took action that was tantamount to finding of guilty, based on their determination the civilian offense was authorized a punitive discharge under the Uniform Code of Military Justice, and/or the sentence included confinement of 6 or more months. Initiation of separation action was not mandatory, and the commander had to consider whether the specific circumstances warranted separation. Soldiers convicted by a civil court were to be considered for reduction in rank. (2) On receiving a recommendation for separation for misconduct, the separation authority could include either approval or disapproval. He/she could also direct a case to be processed through medical channels, if: * such disposition was required because the Soldier had an incapacitating disability that directly, or substantially contributed to, the conduct that resulted in the separation recommendation * a copy of the signed decision by the general court-martial convening authority (GCMCA), with regard to processing through medical channels, was required to be included with the Soldier's records; authority to make this determination could not be delegated 3. Appendix 12 (Maximum Punishment Chart), Manual for Courts-Martial, in effect at the time, showed the maximum punishment for violating Article 111 (Drunken Driving) included a bad conduct discharge, when no personal injury was involved. 4. AR 635-40, in effect at the time, established the Army's DES and set forth policies, responsibilities, and procedures governing the evaluation for physical fitness of Soldiers who might be unfit to perform their military duties because of physical disability. a. Chapter 4 (Procedures), section I (Eligibility for Disability Evaluation) described situations where a Soldier might not be eligible for processing within the DES. (1) Soldiers subject to administrative separation could not be referred for, or continue in physical disability processing when action had been initiated under any regulatory provision that authorized an under other than honorable conditions character of service. (2) The commander with GCMCA could abate the adverse separation action when: * he/she determined the disability was the cause, or was a substantially contributing cause, of the misconduct that might result in a discharge under other than honorable conditions * there were other circumstances that warranted disability processing b. Appendix E (Personnel Processing Actions) stated enlisted personnel discharged because of physical disability would normally be characterized as honorable, but a general discharge under honorable conditions was also authorized when that Soldier's service was satisfactory but not sufficiently meritorious to warrant an honorable characterization. 5. Department of Defense Manual (DODM) 1332.18, Volume 2, currently in effect, prescribes policies and procedures for the processing of Soldiers with duty-related disabling medical conditions. a. The Integrated Disability Evaluation System (IDES) is a joint DOD and VA process by which it is determined if Soldiers who have been wounded, ill, or injured are fit for continued military service. First implemented as a pilot program in 2008, it became the standard DES process with the publishing of Directive-Type Memorandum (DTM) 11-015 (IDES), effective 19 December 2011 (the current DODM superseded the DTM). b. In consultation with the Soldier's commander, and on approval by the MEB convening authority, a military medical provider refers a Soldier with disabling medical conditions into IDES. (1) The VA provides the medical examinations for the disabling conditions. Then, based on the VA's medical examinations, an MEB makes an assessment to identify those medical conditions that fail to meet medical retention standards. All conditions failing retention standards are referred to a PEB for a fitness determination. (2) Conditions found by the PEB to be unfitting are sent to the VA for a disability rating. In determining the rating(s) to be assigned, the VA uses the VA Schedule for Rating Disabilities (VASRD). Each rated disability is assigned a code by VA in accordance with the schedule of ratings within the VASRD. (3) Upon receipt of the disability rating(s) from the VA, the results are finalized and the disposition can include the Soldier being returned to duty or separated (either with severance pay, if the total disability rating is 20 percent or less, or retired, for those cases where the disability rating is 30 percent or higher). 6. AR 601-210 (Regular Army and Reserve Component (RC) Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for the Active Army and RC enlistment program. Table 3-1 (U.S. Army RE Eligibility Codes) included a list of the RE codes: * "RE-1" applied to Soldiers completing their term of active service who were considered qualified to reenter the U.S. Army; they were qualified for enlistment if all other criteria are met * "RE-3" applied to Soldiers who were not considered fully qualified for reentry or continuous service at time of separation, but disqualification was waivable; unless the appropriate authority granted a waiver, they were ineligible for reentry 7. AR 635-5-1 (SPD) states "JKM" applies to Soldiers discharged due to misconduct. SPD codes "SEK" and "SEJ" are respectively used for Soldiers separated and retired for temporary or permanent disabilities, when processed under IDES. Pre-IDES, the SPD were "SFK" and "SFJ." 8. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and RC Soldiers. This cross reference table shows the SPD code and a corresponding RE code. The SPD code of "JKM" has a corresponding RE code of "3." Soldiers retired due to temporary or permanent disabilities receive RE codes of "4." 9. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 10. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160010449 4 1