ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 May 2019 DOCKET NUMBER: AR20160016842 APPLICANT REQUESTS: honorable discharge due to physical disability in lieu of discharge characterization of Honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * self-authored statement * DD Form 214 (Report of Separation from Active Duty) * DD Form 215 (Correction to DD Form 214) * undated document of unknown source, presumably a partial Department of Veterans Affairs (VA) Rating Decision 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 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’s military service records are not available to the Board for review. His records were requested from the NPRC, but they were not able to locate them. The only available records are his DD Form 214 and DD Form 215 which he provided his application. His case is being considered using this available evidence. 3. The applicant states: a. On or about October 1969, while standing at attention for inspection at morning formation, he was questioned by Sergeant X , the first sergeant at the time, who proceeding to strike him in the face with his fist. This was witnessed by everyone near him at the time. Afterward, he had several Soldiers come and scare him into not pressing charges, saying they would make sure he would be sent to the front line in Vietnam if he did press charges. a. b. That caused him to become depressed, knowing he had been struck by Sergeant X and that his men were scaring him into not pressing charges. His depression got worse and worse each day. When he got to Germany, his depression became so bad that some days he was unable to get out of bed and found himself getting worse. When they discovered he suffered from depression, he was discharged from the Army, with no treatment or mention of his depression, although he was clearly suffering from depression at the time of his discharge evaluation. c. For the Army to not offer him any treatment or let him know he was sick or offer him a medical discharge was wrong and he ought to be compensated for this abuse of power. 4. The applicant enlisted in the Regular Army on 21 June 1968. 5. The facts and circumstances surrounding his discharge are not in his available records for review. His DD Form 214 shows: * he was discharged on 20 August 1970, after 2 years and 2 months of net active service this period and 5 months of foreign service in the U.S. Army Europe * his service was characterized as honorable * the authority and reason for his discharge shows Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), with Separation Number (SPN) 246 (Discharge for the Good of the Service) * the authority and reason for his discharge also shows Department of Defense (DOD) Discharge Review Program (Special), with Separation Program Designator (SPD) KCR (DOD Discharge Review Program (Special) 6. A DD Form 215, dated 25 May 1978, shows the applicant’s 20 August 1971 discharge was reviewed under the provisions of Public Law 95-126 and a determination was made that a change in characterization was warranted by DOD Directive. 7. There is no available evidence of record the applicant was ever diagnosed with or treated for a mental health condition during his period of service. 8. The applicant provided what is presumed to be a partial, undated VA Rating Decision, which shows in pertinent part: * while his service treatment records reflect complaints, treatment, or a diagnosis similar to that claimed (presumably a mental health condition), the medical evidence supports the conclusion that a persistent disability was not present in service * Atlanta treatment notes diagnosed major depression in 2012, however this is 40 plus years after his separation from military service and treatment notes state his depression is due to pain and financial concerns * * service connection for major depression (claimed a mental health condition) was denied since this condition neither occurred in nor was caused by service 9. On 18 March 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The ARBA medical advisor concluded there is no evidence supporting the applicant suffered from a mental health condition at the time of his military service or failed medical retentions standards, requiring his referral for a separation through medical channels. A copy of the complete medical advisory was provided to the Board for their review and consideration. 10. The applicant was provided a copy of the advisory opinion on 20 March 2019, and given an opportunity to submit comments, but he did not respond. 11. 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. 12. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. a. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. 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. c. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. a. 13. 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 of less than 30 percent. 14. On 4 April 1977 the DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. These criteria were designated primary criteria. Consideration of other factors (secondary criteria), including possible personal problems that may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the advisory opinion’s finding, the Board found insufficient evidence to show that he had a medical disability which would warrant changing the narrative reason for separation to disability. For that reason, the Board recommended denying the applicant’s request for relief. 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. 5/13/2019 X Pamela Butler CHAIRPERSON Signed by: BUTLER.PAMELA.LYNN.1102721060 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. 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 Army Board for Correction of Military Records (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, 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. 3. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and 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 or not 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 either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. c. 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. a. d. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 4. 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 of less than 30 percent. 5. On 4 April 1977 the DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. These criteria were designated primary criteria. Consideration of other factors (secondary criteria), including possible personal problems that may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. 6. In October 1977, Public Law 95-126 was enacted. This legislation denied Veterans Administration (VA) benefits to any former service member who had been absent without leave for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector. The DOD was required to establish historically consistent, uniform standards for discharge reviews. Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs. Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.