ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 12 March 2019 DOCKET NUMBER: AR20160013860 APPLICANT REQUESTS: * correction of item 26 (Separation Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the a separation program designator (SPD) code of "KDH" instead of "KDF" * correction of item 28 (Narrative Reason for Separation) of his DD Form 214 to show the entry "Hardship" instead of "Locally imposed bar to reenlistment" * correction of his records to show he was separated for medical reasons APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * three DA Form 4856 (General Counseling Form) * DA Form 2A (Personnel Qualification Record Part I) * DA Form 2-1 (Personnel Qualification Record Part II) * DA Form 4126-R (Bar to Reenlistment Certificate) * endorsement, dated 31 August 1992, subject: Recommendation for Separation under the Provisions of Army Regulation (AR) 635-200, Chapter 16, paragraph 16-5b [applicant's name] * DD Form 214 * excerpt of AR 635-200 (Personnel Separations-Enlisted Personnel), dated 1 October 1982 * self-authored statement * third-party statement * 7-page self-authored letter * Department of Veterans Affairs (VA) rating decision letter, date 6 September 2016 * Secretary of Defense memorandum, dated 3 September 2014, pertaining to discharge upgrade requests based on post-traumatic stress disorder (PTSD) * Principal Deputy Under Secretary of Defense memorandum, dated 24 February 2016, pertaining to discharge upgrade by veterans claiming PTSD and traumatic brain injury * Office of the Under Secretary of Defense memorandum, dated 25 August 2017, pertaining to veteran's requests for modification of their discharge based on mental health conditions and sexual assault and harassment * pages 43 through 52 of 78 of a VA compensation and pension (C&P) examination (PTSD) * pages 172 through 224 of 271 of a VA C&P examination (audio) * approximately 40 pages of medical records FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States 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 states: a. On his DD Form 214, item 26, the separation code,"KGF" (Failure to meet minimum qualifications for retention) be amended to be separation code “KDH" (hardship) to properly reflect the narrative reason for the termination of his service as ordered by his commander, who was the separation authority, and to serve in the interest of justice and the restoration of denied benefits due to this error in the record. b. On his DD Form DD214, item 28, the narrative reason for separation "Locally imposed bar to reenlistment" should be amended to "Hardship" to reflect the separation order of his commander, Colonel (COL) W, the separation authority, who is now a retired 4-star general. c. There is an error in the record. The separation authority, the commander of the 11th Armored Calvary Regiment (ACR), COL W’s separation order is incorrectly entered on item 26 of his DD Form 214. The commander's order is for a chapter 6 discharge- separation code "KDH" (hardship) with a narrative reason for separation of "Hardship". d. Veterans benefits, including the GI Bill, have been denied and job prospects are more difficult to obtain due to this error in the record. e. There are injustices in the record. The injustices involve a case of PTSD due to aggravated military sexual trauma (MST) that is currently being reviewed by the VA. Once the case has a decision, the injustice will be addressed in a separate application to this board. 3. The applicant enlisted in the Regular Army on 2 April 1991 for a period of four years. 4. A DA Forms 4856, dated 5 December 1991, shows the applicant received a monthly counseling for the month of November 1991. His performance was above average. 5. A DA Form 4656, dated 28 February 1992, shows he received a monthly counseling for the month of February 1992. The counselor expressed concern about the applicant's appearance, which was falling below standards. It was also noted the applicant expressed his desire to be separated from the Army. 6. A DA Form 4126-R, dated 16 June 1992, shows a Bar to Reenlistment Certificate was imposed against the applicant on 22 June 1922. The form also shows: * he acknowledged he had been furnished a copy of the commander's recommendation * he had been counseled and advised of the basis for the action * he did not desire to submit a statement in his own behalf * he did not appeal the bar to reenlistment 7. The DA Form 4126-R indicates that a commander's statement was attached as an enclosure; however, the commander's statement was not found in the applicant's available records. 8. A memorandum provided by the applicant on 7 July 1992, shows he requested a "chapter 16" discharge because he did not believe he could overcome the recently imposed bar to reenlistment. He also indicated that he did not care to pursue a military career and that he desired to return to civilian status. 9. A DA Form 4187 (Personnel Action) shows that on 6 August 1992, the applicant requested discharged from the service under the provisions of AR 635-200, paragraph 16-5b, due to failure to overcome a locally imposed bar to reenlistment. 10. On 31 August 1992, the Commander, 11th ACR (COL W), issued an endorsement, subject: Recommendation for Separation under the Provisions of Army Regulation 635-200, Chapter 16, paragraph 16-5b [applicant's name]. Paragraph 1 of the endorsement states: "Under the provisions of AR 635-200, Chapter 6, Paragraph 16-5b, [the applicant] will be separated from the U.S. Army with the issuance of an honorable discharge." Paragraph 3 of the endorsement states: "[Applicant's] military records were screened in accordance with AR 635-200, Paragraph 1-36 [Transfer to the Individual Ready Reserve (IRR) in Lieu of Discharge], and he will not be transferred to the IRR." 11. The applicant provided a copy of the above referenced endorsement and included the following statement: "This is my Commanders order-notice that it states – CHAPTER 6- the original unmarked copy of this order has been provided." 12. The applicant's DD Form 214 shows he was honorably discharged on 10 September 1992 under the authority of AR 625-200, paragraph 16-5b, by reason of "locally imposed bar to reenlistment. He was assigned a separation code of "KGF." 13. The applicant provided: a. A self-authored statement stating he was diagnosed with PTSD due to an unreported aggravated sexual assault that occurred while he was in the military. He was unable to continue his role in the Army after suffering this incident and the resulting disabilities. b. A third-party statement, provided by his former platoon leader while he was assigned to the 11th ACR, attesting to the applicant's contention that he was a victim of sexual assault. The applicant's former platoon leader also stated the applicant should have been discharged due to hardship. c. A 7-page self-authored letter in which he essentially contends he should have been processed for separation through medical channels due to PTSD based on MST, for which he was granted service-connected disability compensation by the VA, and based on a diagnosis of pneumonia and bronchitis. He also stated that he was not sent to the IRR for medical reasons that should have been reviewed by a Physical Evaluation Board (PEB)/Medical Evaluation Board (MEB). 14. During the processing of this case, a medical advisory opinion was obtained from the Army Review Boards Agency (ARBA) Clinical Psychologist. It states: a. The applicant requested the ABCMR review his case to determine if he warranted an MEB/PEB, placement on the Permanent or Temporary Disability Retired List, or current retirement. He contends he developed PTSD from MST, for which the VA has granted a 50 percent service-connected disability. He contends his command did not follow procedures with his separation packet, that his diagnoses of bronchitis and pneumonia were both grounds for referral to an MEB, and that his commander wrongly ordered that he not be placed in the IRR. b. The applicant contends he was assaulted and that his health deteriorated following the attack due to anxiety, insomnia, and depression brought on by PTSD. He indicated he was placed on quarters multiple times, lost weight (13 lbs), and deferred completing a rectal exam during his separation physical due to wanting to avoid anything associated with the trauma that occurred. He also contends his outprocessing/separation physical was wrongly conducted by a medical provider who was in his immediate chain of command which may have contributed to bias and posed a conflict since a medical officer within his chain of command should not have been allowed to perform his separation physical. He indicated that this conflict made it difficult to open up about his trauma due to feeling uncomfortable addressing any questions or screenings related to MST with members of his unit. He further indicated that the person that attacked him was "likely one of them". He indicated that after the MST assault, his squad sergeant sent him to sick call after sneaking up behind him and stomping his foot to check his "flight or fight response." c. The applicant reported he responded by taking a swing at the squad sergeant and that upon being sent to sick call, he felt ashamed telling others about the assault and subsequent head injury, which included an abrasion on his right temple and lump on the right side of his head. Furthermore, he indicated he was informed by his squad sergeant that if he wanted to "get out of here", he should not say anything about his visit to the psychiatrist and that the only way he could "get out" would be due to failing the Army Physical Fitness Test (APFT) run. He reported he visited a psychiatrist once, but his medical troop commander refused to send him despite pleading to be seen. He indicated he subsequently did fail the APFT run, which he attributed to anxiety, insomnia, and depression from PTSD. d. A review of the applicant's military records indicates he received a monthly counseling, dated 5 December 1991, which indicated his work performance was above average. A monthly counseling, dated 28 February 1992, indicated his performance for the month had been hampered by a lot of visits to sick call and being put on quarters. It was noted that his appearance was starting to fall below the standards and that he had expressed to the firs sergeant a desire to get out of the Army. He was counseled that even though he had requested to get out, it did not mean he was allowed to drop below the standard. A monthly counseling dated, 29 May 1992, indicated he participated in the German Sports badge and qualified for the Bronze Shooting Badge. It was noted that he previously had intended to leave the Army, but had decided to remain. It was noted that he needed to get some motivation and initiative, that his haircut and boots were good, but that his uniform needed some work. e. A mental health note, dated 31 March 1992, indicated the applicant reported "I just cannot take this anymore." He denied suicidal or homicidal ideation; however, he considered hurting himself or someone else. He also endorsed sleep disturbance of 2- 3 hours per night and alcohol use of 2-3 beers daily. He reported increased stress for the last 3 months stemming from his general dissatisfaction with his job and position. He reported feeling frustrated, disappointed, disliked formations and having shared quarters, and upset about a recent mass punishment he viewed as unfair. Medical note indicated he did not have a history of Article 15s or any disciplinary actions against him and that he had requested separation 2 months ago, but there was no action taken. Medical provider described his mood as mildly depressed and affect was appropriate and congruent. He was diagnosed with and occupational problem, adjustment disorder with depressed mood, and alcohol abuse and was referred for a community counseling evaluation. f. A review of military medical records indicated the applicant was seen frequently by medical providers for various concerns to include an upset stomach, cold sores, high fever (101 degrees), foot blister, bilateral shin splints, warts on hands, ankle pain, wrist pain, pain in right testicle, hyperextension/abduction injury to right thumb, strep prophylaxis, pneumonia, an upper respiratory infection, and bronchitis. The Report of Medical Examination, dated 18 August 1992, as part of the separation physical, indicated he had a single episode of blood streaked sputum and bronchitis 4 weeks prior with mild persistent/transient chest tightness, but had otherwise unremarkable health. It was also indicated that a rectal exam was deferred and he denied melena (blood in colon), hematochezia (passage of blood in the stool), and hematemesis (vomiting blood). The Report of Medical Examination also indicated that a chest X-Ray was conducted on 13 July 1992 and was within normal limits. g. A review of military records indicated a Bar to Reenlistment Certificate was issued on 16 June 1992. The record indicated the applicant had no history of court- martial convictions, non-judicial punishment, or record of non-payment of just debts. A request for a Chapter 16, dated 7 July 1992, indicated his discharge was based on a failure to overcome locally imposed bar to re-enlistment. He also indicated he did not care to pursue a military career and desired to return to civilian status. h. Post-service, there was evidence the applicant was evaluated for human papillomavirus (HPV) located in his anus and resulted in surgery. A post-service medical note, dated 23 February 1995, from Dr. B, indicated an excision and cauterization with curretement of the anal and perianal condylomata acunianata. A diagnosis of anal condyloma (warts) was noted. i. A review of VA medical records indicated a 50 percent service-connected disability rating for the diagnosis of PTSD due to MST, also claimed as depression and substance abuse effective 1 December 2016. VA medical records indicated he reported being sexually assaulted anally and struck in the face. He stated "I woke up, could not remember for quite sometime... maybe a year... I'd see it in a dream. I remember waking up... trying to figure out what was going on... realizing what was going on... trying to push myself off the bed... not remembering if I hurt the individual or not... trying to look to the right and see who was attacking me... seeing a fist and silhouette... and that's ... that's all there was." It was further indicated that he recalled waking up in the morning with an abrasion above his right temple and a lump (knot) and that his back and his rectum hurt. VA medical records indicated a history of being placed on suicide watch while incarcerated in 1995 due to having thoughts of harming himself. He was incarcerated following an argument with a girlfriend, in which he put his head through the door. He also has a legal history to include driving under the influence (2001) which resulted in a sentencing that was less than one year and being placed in a work release program. j. The ARBA's Clinical Psychologist was asked to determine if there is a nexus between the information/diagnoses contained in that documentation and the misconduct that resulted in the applicant's discharge. This opinion is based on the information provided by the Board and the Joint Legacy Viewer as the Department of Defense electronic medical record (AHLTA) was not in use at the time of his service. k. Based on a thorough review of available medical records, the applicant's contention that he was sexually assaulted and developed PTSD from MST while serving on active duty is noted. His self-statement and medical documentation from the VA indicating a diagnosis of PTSD supports his claim. Regarding his contention about a medical disposition at the time of separation, not being recommended for further service does not indicate he should have been referred for a PEB/MEB. There is no evidence he did not meet the Medical Retention Determination Point for any of the contended medical reasons and there is no evidence of a permanent profile, or failure to meet medical qualification standards. This observation does not negate the applicant's sexual assault or post-service diagnoses and treatment; however, there is no evidence of a boardable medical or behavioral health condition during his period of service that warranted medical retirement. 15. The medical advisory opinion was provided to the applicant to give him the opportunity to provide additional evidence or a rebuttal. He did not respond. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contention, medical concerns, and the medical advisory opinion were carefully considered. Based upon the preponderance of evidence, the Board agreed there were no medical concerns during the applicant’s period of service to initiate a medical board. There is evidence that supports his listed discharge characterization, SPD code, and reenlistment code were provided on his separation document in accordance with regulatory guidance. 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, USC, 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. Army Regulation 635-200, paragraph 6-3, in effect at the time, states Soldiers of the Active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship. The regulation provides that hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. 3. Army Regulation 635-200, paragraph 16-5, in effect at the time, states that members who perceived they will not be able to overcome a locally imposed bar to reenlistment may apply for immediate discharge. 4. Army Regulation 635-5-1 (SPD Codes), prescribe the specific authorities and the reasons for the separation of members from active military service and the SPD codes to be used for these stated reasons. The regulation in effect at the time of the applicant's discharge stated that the SPD code KGF, as shown on the applicant's DD Form 214, specified the narrative reason for discharge as "Headquarters Department of the Army or locally imposed bar to reenlistment" and that the authority for separation under this SPD code was paragraph 16-5a or b of Army Regulation 635-200. The same regulation stated that SPD code KDH, pertained to enlisted Soldiers separated due to dependency or pregnancy. The SPD code KDB pertained to Soldiers separated due to hardship. 5. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, the individual must be unable to perform the duties of his or her office, grade, rank, or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 6. 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. However, an award of a higher VA rating does not establish an error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his or her duties. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160013860 2 1