ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  21 May 2019

	DOCKET NUMBER:  AR20160019080


APPLICANT REQUESTS: his narrative reason for separation upgraded from “physical condition, not a disability” to “disability for post-traumatic stress disorder (PTSD).”

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Medical Evidence (photograph of Veterans Affairs (VA) rating for PTSD)

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, his VA disability rating increased to 100% for PTSD, total and permanent.

3.  The applicant provides, medical evidence, in the form of a photograph, which shows that the applicant was rated 100% for PTSD from the VA.

4.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 27 December 2001.

	b.  The applicant’s record is void of any separation documents.  However, his service record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty).  This form shows he was discharged from active duty on 13 August 2002, under the provisions of AR 635-200, chapter 5 (Separation for Convenience of the Government), paragraph 5-17 (Other designated physical or mental conditions) with a honorable characterization of service.  He completed 6 months and 2 days of active duty service and he was awarded or authorized the National Defense Service Medal, Expert Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar (M16)
5.  On 9 May 2017, CMD requested a medical review of the applicant’s alleged medical condition(s) to ascertain if condition(s) warranted separation through medical channels.  As a result, on 23 May 2017, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion and opined:

	a.  The applicant’s medical records do not at the time of his discharge reasonably support his having had a boardable medical condition for that period.

	b.  He did meet mental-health standards in Army Regulation (AR) 40-501 (Standards of Fitness) and AR 635-40 (Physical Evaluation for Retention, Retirement or Separation).

	c.  Based on available behavioral-health evidence the applicant did not meet medical retirement standards.

	d.  The applicant did meet medical retention standards in accordance with 
Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant’s era of service. 

	e.  The applicant’s mental-health conditions were considered at the time of his discharge from the Army.

	f.  A review of available documentation did not discover evidence of a mental health considerations that would have made a referral for medical retirement appropriate.

6.  The applicant was provided with a copy of this advisory opinion on 23 May 2017, to give him an opportunity to submit a rebuttal.  He did not respond.

7.  By regulation 635-200, when a commander determines that a soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the soldier for a medical examination and/or mental status evaluation in accordance with AR 40–501.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.

8.  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’s finding that it did not discover evidence of a mental health considerations that would have made a referral for medical retirement appropriate, as well as the applicant failing to provide a rebuttal to those findings, the Board concluded that there was insufficient evidence of an error or injustice which would warrant changing the narrative reason for separation.

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, 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.

2.  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.
3.  Army Regulation (AR) 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 5 of this regulation, states that unless the reason for separation requires a specific characterization, a soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status.  No soldier will be awarded a character of service under honorable conditions under this chapter unless the soldier is notified of the specific factors in his/her service record that warrant such a characterization, using the notification procedure.

	b.  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.

	c.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

4.  AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement.

5.  AR 635-40 (Physical Evaluation for Retention, Retirement or Separation), establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC).  It 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 or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

6.  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.
7.  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.


ABCMR Record of Proceedings (cont)	 AR20160019080


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