ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  17 July 2019

	DOCKET NUMBER:  AR20160017977


APPLICANT REQUESTS: the addition of his Traumatic Brain Injury (TBI) to his service records.

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)
* Letter from the Department of Veterans Affairs (VA)
* Audiology Test Results

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, he suffered from a noise induced TBI.

3.  The applicant provides:

	a.  Audiology Test Results, dated 30 June 2010, which states the pure tone audiometry revealed mild to severe sensorineural hearing loss in the left ear and mild to profound sensorineural hearing loss in the right ear.

	b.  Letter from the VA, dated 24 July 2015, which states that the applicant has been diagnosed with depression, psychotic, hearing loss, post- traumatic stress disorder, memory loss, and unspecified organic brain syndrome (chronic).  The physician recommends reevaluation of his service connected conditions.

4.  A review of his service records shows:

	a.  He enlisted on 18 January 1968 in to the Regular Army (RA).  He served in Vietnam form 5 July 1968 to 4 July 1969.
	b.  He was transferred to the United States Army Reserve (USAR) on 
16 January 1970, under the provisions of Army Regulation (AR) 635-200, with an honorable characterization of service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), reflects he had 1 year, 11 months, and 29 days of active service.  He was awarded or authorized:

* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M14)
* Vietnam Service Medal
* Overseas Ribbon (2)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M16)
* Vietnam Campaign Medal
* National Defense Service Medal
* Army Commendation Medal

	c.  On 17 January 1975, he was discharged from the USAR under the provisions of AR 135-178 (Separation of Enlisted Personnel), with an honorable characterization of service.  The reason for discharge is expiration term of service.

5.  On 16 April 2019, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion and opined:

	a.  The applicant’s contributions during his time in Vietnam were classified, there is no data describing his traumatic experiences.  He is already receiving VA medical support for both post-traumatic stress disorder (PTSD) and TBI based on his honorable discharge.  Supplemental guidance is central to this case due to both PTSD and TBI, which the VA has determined are service related.

	b.  The available record does reasonably support PTSD, or another medically boardable behavioral health condition at the time of the applicant's military service, based on Supplemental Guidance, PTSD and TBI were present at the time.

	c.  There is insufficient evidence to opine if the applicant met medical retention requirements at the time of his service as his contributions in Vietnam were classified.

6.  On 30 April 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal.  He did not respond.

7.  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 found the relief was not warranted.  The applicant’s contentions and the medical advisory opinion were carefully considered.  He requests to add that he suffers from TBI in his military record.  There is no regulatory provision that allows for annotating TBI within the official military personnel file (OMPF).  The applicant is advised this record of proceeding will reflect his request to have TBI in his OMPF.  In addition, his diagnosis by the VA is sufficient evidence to show the VA determined his TBI is service-connected.

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.



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) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

3.  AR 40-501 (Medical Services – Standards of Medical Fitness) governs regulation governs Medical fitness standards for enlistment, induction, and appointment, including officer procurement programs, Medical fitness standards for retention and separation, including retirement, Medical fitness standards for diving, Special Forces, Airborne, Ranger, free fall parachute training and duty, and certain enlisted military occupational specialties (MOSs) and officer assignments.  It also governs Medical standards and policies for aviation, Physical profiles, and Medical examinations.

4.  On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to:  mental health conditions, including PTSD; TBI; sexual assault; sexual harassment.  Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences.  The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge.

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, 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160017977


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