ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS




	BOARD DATE:  26 February 2019

	DOCKET NUMBER:  AR20160011198


APPLICANT REQUESTS:  In effect, correction of his records to show he was 
discharged due to a medical condition.

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 20 May 2016
*	DD Form 256A (Honorable Discharge Certificate), dated 24 January 2007
*	DA Form 5689 (Oath of Reenlistment Certificate), dated 25 January 2007
*	DA Form 4980-18 (Army Achievement Medal (AAM) Certificate), dated  
1 August 2007
*	DA Form 4980-14 (Army Commendation Medal (ARCOM) Certificate), dated  
1 January 2008
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), for the 
period ending 3 September 2008
*	Department of Veterans Affairs (VA) Benefits Letter, dated 23 January 2015

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 enlisted in the Regular Army on 8 April 2003.  He completed training 
as a track vehicle mechanic.  He reenlisted in the Regular Army on 25 January 2007.

3.  The applicant deployed to Iraq from 21 April 2007 through 9 January 2008.

4.  The applicant accepted nonjudicial punishment (NJP) on 17 October 2007, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to 
obey a lawful order by wrongfully consuming alcohol [while deployed to Iraq] in violation 
of General Order Number 1.

5.  The applicant underwent a mental status evaluation on 20 June 2008.  The Licensed 
Social Worker who examined him determined that he had no significant mental 
illness(es) and he was mentally responsible, able to distinguish right from wrong and 
adhere to the right, and had the mental capacity to understand and participate in board 
proceedings. 

6.  The applicant accepted NJP on 19 July 2008, under the provisions of Article 15 of 
the UCMJ, for assaulting another Soldier who he knew was in the execution of military 
police duties, by striking him with his head, and for being drunk and disorderly. 

7.  The applicant's commander notified the applicant on 14 August 2008 that he was 
being recommended for discharge under the provisions of Army Regulation 635-200  
(Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct – 
commission of a serious offense.  His commander cited his wrongful consumption of 
alcohol, being drunk and disorderly, and willfully assaulting a military policy officer as 
the basis as the basis for his recommendation.  The applicant acknowledged receipt of 
the notification on 15 August 2008.

8.  The applicant consulted with counsel on 18 August 2008 and waived his right to 
have his case considered by a board of officers.

9.  The applicant's commander formally recommended his separation under the 
provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – 
commission of a serious offense.  The separation authority approved the 
recommendation for discharge on 20 August 2008 and directed the issuance of an 
General Discharge Certificate.

10.  The applicant was discharged on 3 September 2008, under the provisions of Army 
Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct – commission of a 
serious offense.  The DD Form 214 he was issued shows:

*	his character of service was shown as "Under Honorable Conditions (General)"
*	his narrative reason for separation was shown as "Misconduct, (Serious 
Offense)"

11.  The applicant's record fails to reveal evidence that shows he suffered from a 
medically unfitting condition prior to this discharge from the Army.

12.  The Army Discharge Review Board denied the applicant's request for an upgrade of 
his discharge on 10 November 2009.

13.  The VA Benefits Letter, dated 23 January 2015, shows the applicant was awarded 
a service-connected disability rating by the VA on 28 March 2013, for post-traumatic 
stress disorder (PTSD) with depression.
14.  During the processing of this case an advisory opinion was obtained from the Army 
Review Boards Agency Clinical Psychologist, who stated and opined:

   a.  She was asked to determine if the applicant's military separation was due to a 
diagnosis of PTSD or another boardable behavioral health condition and if his 
characterization of discharge warranted a change to a medical discharge.  

   b.  The opinion was based on the information provided by the Board and records 
available in the Department of Defense (DoD) electronic medical record (AHLTA). 

   c.  Based on a thorough review of available medical records, there was evidence 
that the applicant demonstrated a propensity to abuse alcohol prior to and following his 
military deployment. 

   d.  There was no evidence that the applicant met criteria for PTSD during his military 
service or that an undiagnosed condition mitigated his misconduct leading to an early 
separation.

   e.  This observation did not negate the applicant's military service, deployment 
history, diagnosis, or treatment for PTSD from the VA; however, the VA conducts 
evaluations based on different standards and regulations. 

   f.  In summary, there was no evidence that a behavioral health condition mitigated 
the applicant's misconduct or that his characterization warrants a change.

15.  The applicant was provided a copy of the advisory opinion for his information and/or 
possible rebuttal.  He did not respond.

16.  Army Regulation 40-501 (Standards of Medical Fitness) provides information on 
medical fitness standards for induction, enlistment, appointment, retention, and related 
policies and procedures.

17.  Army Regulation 635-40 (Disability Evaluation for Retention, Retirement or 
Separation) prescribes Army policy and responsibilities for the disability evaluation and 
disposition of Soldiers who may be unfit to perform their military duties due to physical 
disability.

18.  Army Regulation 635-200 provides the authority for separation of enlisted 
personnel upon expiration of term of service; the authority and general provisions 
governing the separation of enlisted personnel prior to expiration of term of service; and 
the criteria governing the issuance of Honorable and General Discharge Certificates.




BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The Board agreed medical concerns were 
considered, and did not require referral to a medical evaluation board.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	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.



	  
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):

Not Applicable



REFERENCES:

1.  Title 10, U.S. Code, 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 1201, provides for the physical disability retirement of a 
member who has at least 20 years of service or a disability rating of at least 30 percent.  
Title 10, U.S. Code, section 1203, provides for the physical disability separation of a 
member who has less than 20 years of service and a disability rating at less than 
30 percent.

3.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments 
with authority to retire or discharge a member if they find the member unfit to perform 
military duties because of physical disability.  The U.S. Army Physical Disability Agency, 
under the operational control of the Commander, U.S. Army Human Resources 
Command (HRC), is responsible for administering the Physical Disability Evaluation 
System (PDES) and executes Secretary of the Army decision-making authority as 
directed by Congress in chapter 61 and in accordance with DoD Directive 1332.18 
(DES) and Army Regulation 635-40.

   a.  The objectives of the system are to:

*	maintain an effective and fit military organization with maximum use of 
available manpower
*	provide benefits for eligible Soldiers whose military service is terminated 
because of service-connected disability
*	provide prompt disability processing while ensuring that the rights and 
interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES when they:

*	no longer meet medical retention standards in accordance with Army 
Regulation 40-501, chapter 3, as evidenced in an Medical Evaluation Board 
(MEB)
*	receive a permanent medical profile, P3 or P4, and are referred by an Military 
Occupational Specialty (MOS) Medical Retention Board (MMRB)
*	are command-referred for a fitness-for-duty medical examination
*	are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages – the MEB and the 
Physical Evaluation Board (PEB).  The purpose of the MEB is to determine whether the 
service member's injury or illness is severe enough to compromise his/her ability to 
return to full duty based on the job specialty designation of the branch of service.  A 
PEB is an administrative body possessing the authority to determine whether a service 
member is fit for duty.  A designation of "unfit for duty" is required before an individual 
can be separated from the military because of an injury or medical condition.  Service 
members who are determined to be unfit for duty due to disability are either separated 
from the military or are permanently retired, depending on the severity of the disability 
and length of military service.  Individuals who are separated receive a one-time 
severance payment, while service members who retire based upon disability receive 
monthly military retirement payments and have access to all other benefits afforded to 
military retirees.

	d.  The mere presence of a medical impairment does not in and of itself justify a 
finding of unfitness.  In each case, it is necessary to compare the nature and degree of 
physical disability present with the requirements of the duties the Soldier may 
reasonably be expected to perform because of his or her office, grade, rank, or rating.  
Reasonable performance of the preponderance of duties will invariably result in a 
finding of fitness for continued duty.  A Soldier is physically unfit when a medical 
impairment prevents reasonable performance of the duties required of the Soldier's 
office, grade, rank, or rating.

4.  Army Regulation 40-501, states that for an individual to be found unfit by reason of 
physical disability, he must be unable to perform the duties of his office, grade, rank or 
rating.

5.  Army Regulation 635-40 states that when a member is being separated by reason 
other than physical disability, his continued performance of duty creates a presumption 
of fitness which can be overcome only by clear and convincing evidence that he was 
unable to perform his duties or that acute grave illness or injury or other deterioration of 
physical condition, occurring immediately prior to or coincident with separation, 
rendered the member unfit.

6.  Directive-Type Memorandum (DTM) 11-015 explains the IDES.  It states: 

	a.  The IDES is the joint DoD-VA process by which DoD determines whether 
wounded, ill, or injured service members are fit for continued military service and by 
which DoD and VA determine appropriate benefits for service members who are 
separated or retired for a service-connected disability.  The IDES features a single set 
of disability medical examinations appropriate for fitness determination by the Military 
Departments and a single set of disability ratings provided by VA for appropriate use by 
both departments.  Although the IDES includes medical examinations, IDES processes 
are administrative in nature and are independent of clinical care and treatment.

	b.  Unless otherwise stated in this DTM, DoD will follow the existing policies and 
procedures requirements promulgated in DoDI 1332.18 and the Under Secretary of 
Defense for Personnel and Readiness memoranda.  All newly initiated, duty-related 
physical disability cases from the Departments of the Army, Air Force, and Navy at 
operating IDES sites will be processed in accordance with this DTM and follow the 
process described in this DTM unless the Military Department concerned approves the 
exclusion of the service member due to special circumstances.  Service members 
whose cases were initiated under the legacy DES process will not enter the IDES.

	c.  IDES medical examinations will include a general medical examination and any 
other applicable medical examinations performed to VA C&P standards. Collectively, 
the examinations will be sufficient to assess the member’s referred and claimed 
condition(s) and assist VA in ratings determinations and assist military departments with 
unfit determinations. 

	d.  Upon separation from military service for medical disability and consistent with 
BCMR procedures of the Military Department concerned, the former service member (or 
his or her designated representative) may request correction of his or her military 
records through his or her respective Military Department BCMR if new information 
regarding his or her service or condition during service is made available that may result 
in a different disposition.  For example, a veteran appeals VA’s disability rating of an 
unfitting condition based on a portion of his or her service treatment record that was 
missing during the IDES process.  If VA changes the disability rating for the unfitting 
condition based on a portion of his or her service treatment record that was missing 
during the IDES process and the change to the disability rating may result in a different 
disposition, the service member may request correction of his or her military records 
through his or her respective Military Department BCMR.

	e.  If, after separation from service and attaining veteran status, the former service 
member (or his or her designated representative) desires to appeal a determination 
from the rating decision, the veteran (or his or her designated representative) has 1 year 
from the date of mailing of notice of the VA decision to submit a written notice of 
disagreement with the decision to the VA regional office of jurisdiction.

7.  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.  An Army 
disability rating is intended to compensate an individual for interruption of a military 
career after it has been determined that the individual suffers from an impairment that 
disqualifies him or her from further 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 only conditions determined to be physically unfitting at the time of 
discharge, thus compensating the individual for loss of a career, while 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.  


8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  

	a.  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.

	b.  Chapter 14 establishes policy and prescribes procedures for separating members 
for misconduct.  Specific categories include minor disciplinary infractions (a pattern of 
misconduct consisting solely of minor military disciplinary infractions), a pattern of 
misconduct (consisting of discreditable involvement with civil or military authorities or 
conduct prejudicial to good order and discipline), commission of a serious offense, and 
convictions by civil authorities.  Action will be taken to separate a member for misconduct 
when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.
A discharge under other than honorable conditions is normally appropriate for a Soldier 
discharged under this chapter.  However, the separation authority may direct a general 
discharge if such is merited by the Soldier's overall record.

9.  The Secretary of Defense directed, on 3 September 2014, that the Service 
Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval 
Records (BCM/NRs) carefully consider revised PTSD criteria, detailed medical 
considerations and mitigating factors when taking action on applications from former 
service members administratively discharged under other than honorable conditions 
and who have been diagnosed with PTSD by a competent mental health professional 
representing a civilian healthcare provider in order to determine if it would be 
appropriate to upgrade the characterization of the applicant's service.

10.  The Secretary of Defense provided clarifying guidance to Service DRBs and 
Service BCM/NRs on 25 August 2017.  The memorandum directed them to give liberal 
consideration to veterans petitioning for discharge relief when the application for relief is 
based in whole or in part on matters relating to mental health conditions, including 
PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment.

   a.  Guidance documents are not limited to under other than honorable discharge 
characterizations, but rather apply to any petition seeking discharge relief including 
requests to change the narrative reason, re-enlistment codes, and upgrades from 
general to honorable characterizations.

   b. An honorable discharge characterization does not require flawless military 
service.  Many veterans are separated with an honorable characterization despite some 
relatively minor or infrequent misconduct.

   c.  Liberal consideration does not mandate an upgrade.  Relief may be appropriate, 
however, for minor misconduct commonly associated with mental health conditions, 
including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual 
harassment; and some significant misconduct sufficiently justified or outweighed by the 
facts and circumstances.

11.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military DRBs and BCM/NRs on 25 July 2018, 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 court-martial forum.  
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to any other corrections, including changes in a discharge, which 
may be warranted on equity or relief from injustice grounds.

   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, Boards 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.


ABCMR Record of Proceedings (cont)	 AR20160011198

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