ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 July 2019 DOCKET NUMBER: AR20160017529 APPLICANT REQUESTS: * To go before a medical and physical review board for a determination of disabilities incurred from combat * Consideration for a medical discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Record review brief, dated 4 November 2016 * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 states the error and injustice which needs to be corrected in his military records is the honorable discharge he was issued. The applicant should have been evaluated before a medical and physical board prior to being separated from active duty, and then again prior to being separated from the Individual Ready Reserve (IRR). The evidence will show that the applicant was denied the evaluations and medical discharge which are supported in the Armed Forces through the interests of justice, military tradition, and the law. a. The applicant's military records are in error and unjust for the following reasons The applicant and his unit engaged in dangerous combat operations while serving a 15 month tour of duty as infantrymen during Operation Iraqi Freedom 07-08. As a result of this combat, the applicant developed severe and debilitating mental and physical health conditions which caused the applicant to be unable to perform the demands of his Military Occupational Specialty (MOS). The applicant was deemed to be unable to perform the necessary functions of his MOS during several of the final months that his unit was in Iraq. As a result, he was discouraged from going to sick call and getting mental health treatments, and was instead assigned to remain on base during the daily missions his platoon conducted outside of the wire for several months. Some of the incidents which led to this decision were the applicant firing his weapon and killing a dog that he improperly suspected of posing a danger. He had an inability to sleep and function properly as a result during missions, and inability to follow through with instructions on and off missions, and otherwise being unfit for duty. None of these issues had ever before existed for the applicant throughout his military service, as is evidenced by the lack of disciplinary action leading up to this point, and by the applicant's quick attainment of rank and promotions which vastly outpaced his peers. Earning the rank of sergeant, SGT/E-5 in only 2 years 8 months of service. The applicant was a high-speed enlisted Soldier until this point. b. When the applicant's unit returned from Iraq, the applicant was further discouraged from seeking treatment, and was instead put on light duty and told to "hang on until you are discharged honorably", or risk losing treatment through the Veterans Affairs (VA) administration upon release from active duty. As a result of the applicant's inability to perform his job and due to his discouragement from seeking treatment, the applicant instead was encouraged to request a "college drop" to be released from active duty several months early, because he was no longer able to do his job. He was encouraged to just get out as soon as possible. The applicant complied with this instruction, as he was concerned that failing to do so would result in a bad conduct or dishonorable discharge, thereby tainting his military record, harming his future job prospects, and making him ineligible for medical treatment upon release from duty. c. Since leaving active duty, the applicant has been unable to maintain any gainful employment whatsoever and has lived below the poverty line every year since then, despite having attempted to work at dozens of jobs. Please see "supporting documents" for a more detailed account of symptoms and treatment in a brief submitted to the VA requesting an increase in already existing disability benefits. This brief will help to support the applicant's claims contained here. d. The applicant was promptly diagnosed with Post-Traumatic Stress Disorder (PTSD) and other symptoms by the VA with an effective date one day after his discharge from active duty, as VA regulation does not allow the date to extend into active duty time. The applicant regularly attends counseling and takes several medications prescribed by a psychiatrist at the VA, this began during the years after discharge and remains to this day. e. For several years after his honorable discharge from active duty, the applicant remained on IRR status. During this time, the applicant was accused of misconduct by the Inactive Reserve Unit he was assigned too because of a telephone call between the applicant and a member of the unit. The applicant's PTSD had led to substance abuse and alcoholism during this time, and the IRR unit commander decided to change the applicant's honorable discharge to something less than the honorable as a result of the a. substance abuse. He was no longer able to perform his job. Again, fearing loss of medical and healthcare coverage for the service connected disabilities, the applicant was thankfully assigned a Judge Advocate General (JAG) attorney to represent him. The JAG attorney convinced the unit commander to no longer pursue an other than honorable discharge for the applicant, in part through DoD Instruction 1332 38, in Enclosure 4, medical conditions that generally warrant referral for medical discharge/retirement proceedings. The service regulations include Army Regulation (AR) 40-501 (Medical Services-Standards of Medical Fitness). As a result of the JAG attorney, the unit commander stopped pursuing a downgrade in discharge, but no medical evaluation was recommended for the applicant either, which was both inequitable and improper. f. The applicant asserts that it was both inequitable and improper that he was not recommended for a medical evaluation and review prior to being discharged from the Armed Forces. This decision is inequitable because the medical disabilities related to PTSD which resulted from combat while on active duty where not properly evaluated while on active duty as they should have been, and were further not evaluated while on IRR status, despite the policies of the Army mentioned above. The decision is also improper because it is in violation of the law HR 1701 — 111th Congress (2009-2010) states that "if an appropriate health care official determines in an examination that a member who was deployed in support of a contingency operation has (or may have) PTSD or a traumatic brain injury, the Secretary concerned to (1) refer the member for an evaluation by a physical evaluation board, and (2) not separate the member until after considering the results of the evaluation.” g. This law was in effect during the applicant's IRR time and was even invoked by the applicant's JAG attorney, in order to convince the unit commander to allow the applicant to keep his honorable discharge. The wording of this law makes clear that the applicant should have been recommended to a review board for evaluation for the mental health conditions which had already been diagnosed by a VA professional during that time, and discharge should not have taken place until after an appropriate medical review board and consideration of the results had taken place. h. The applicant therefore requests that the finders of fact determine that it is both equitable and proper for the applicant to go before a medical and physical review board for a determination of disabilities incurred from combat, and that consideration for a medical rather than honorable discharge is supported by the evidence and law. 3. The applicant provides: * Record review brief, dated 4 November 2016 addressed above * DD Form 214 which shows he was honorably released from active duty under the provisions (UP) of Army Regulation (AR) 635-200 paragraph 5-16 (Early Separation to Further Education) to attend civilian school * 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 21 November 2005. b. He served in Iraq from 8 September 2007 until 28 October 2008. c. On 13 November 2008, the applicant requested to separate 90 days early of his contractual expiration term (ETS) of service date for the purpose of beginning the spring semester at the University of Massachusetts, Boston. His immediate commander recommended approval. d. On 21 November 2008, his intermediate commander recommended approval. e. On 25 November 2008, the approval authority approved his request for separation UP of AR 635-200, paragraph 5-16. f. On 25 January 2009, he was honorably released from active duty accordingly. He completed 3 years, 2 months, and 5 days of active service. He was awarded the Army Commendation Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal with campaign star, Army Service Ribbon, Overseas Service Ribbon, and Combat Infantryman Badge. 5. On 12 November 2013, he was honorably discharged from the U.S. Army Control Group (Reinforcement). 6. His record is void evidence that shows he received a permanent profile for any boardable medical condition. 7. On 31 January 2019, Case Management Division (CMD), notified the applicant to provide a copy of the medical documents that support his PTSD. He was given 45 days until 17 March 2019 to provide documentation (annotation of response is void). 8. On 25 April 2019, Case Management Division (CMD) received a medical review of the applicant’s medical condition(s) not considered at the time of the applicant’s administrative separation processing. The Army Review Board Agency medical advisor rendered an advisory opinion in the applicant’s case. The advisor opined: a. There is no data in the applicant’s military personnel records or his military medical records to indicate that while he was active duty, that he experienced a traumatic event. The data does indicate that he experienced the normal transition from a deployed setting to a garrison setting. The data indicates that he was successful in this transition. There is no data to indicate that he was denied access to medical care (either medical care or behavioral health care) while active duty or while in the IRR. a. b. There is no data to indicate that the applicant should have been separated from active duty status via a Physical Evaluation Board (PEB)/Medical Evaluation Board MEB. There is also no data to indicate that he should have been separated from the IRR via a PEB/MEB. The data from VA indicates that he was diagnosed with PTSD on 22 December 2015. The applicant is receiving behavioral health support from VA via his honorable discharge. 9. On 6 May 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity (15 days) to submit a response and/or a rebuttal. He did not respond. 10. By regulation, AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. 11. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), 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. The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. 12. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the medical advisory finding no data to indicate that the applicant should have been separated from active duty status via a Physical Evaluation Board (PEB)/Medical Evaluation Board MEB and the applicant failing to provide a rebuttal to that finding, the Board concluded there was insufficient evidence to show an error or injustice which would warrant referring the applicant’s record to the IDES process for processing. For that reason, the Board recommended denying the applicant’s request. 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 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. Army Regulation (AR) 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), 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. The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. 4. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 5. 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. 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 based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, 1. mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. 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.