ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 December 2019 DOCKET NUMBER: AR20160019454 APPLICANT REQUESTS: In effect, his narrative reason for separation be changed to medical discharge and his characterization be changed to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (DVA) disabilities letter, 8 March 2016 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 he was issued a wrongfully discharged characterization and narrative. Post-Traumatic Stress Disorder (PTSD) is a medical disability. He had PTSD due to combat exposure, which effected service. He provides a letter from DVA verifying his service connected disability of PTSD at 50%. 3. A review of the applicant’s service records shows: a. He had prior enlisted service. He enlisted in the Regular Army on 6 May 2009. b. On 21 August 2009, he underwent a mental status evaluation due to discharge consideration. The clinical psychologist stated the applicant was diagnosed with an Axis I condition of PTSD. Separation from service in accordance with Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) Chapter 5-17 (Other Mental Condition) being in the best interest of both the Army and the Soldier. c. On 26 August 2009, his commander recommended the applicant for separation under the provisions (UP) of AR 635-200, chapter 5-17. d. The applicant was notified on 26 August 2009 of the proposed separation. e. On 31 August and 10 September 2009, the intermediate commanders concurred with the separation recommendation. f. On 3 September 2009, the applicant consulted with counsel and was advised of the basis for the contemplated action to separate him for other designated physical or mental condition UP of AR 635-200 chapter 5-17, the effects of the rights available to him, and the effect of any action taken by waiving his rights. He understood: * He is entitled to have his case considered by an administrative separation board * His willful failure to appear before the administrative separation board by absenting himself without leave will constitute a waiver of his rights to personal appearance before the board * He may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued g. On 15 September 2009, the separation authority approved the entry-level discharge. Accordingly, he was discharged on 17 September 2009 with an uncharacterized character of service. His DD Form 214 shows the narrative reason for separation is condition, not a disability. 5. On 19 November 2019, The Army Review Board Agency psychologist rendered an advisory opinion in the applicant’s case. The advisor opined the applicant had PTSD prior to his Army enlistment and thus did not meet accession standards. His symptoms were likely exacerbated during combat training thus leading to identification of the preexisting condition and his administrative separation under AR 635-200, paragraph 5-17. It was not viewed as a disability due to his ability to function outside of military combat training. He was given an uncharacterized discharge consistent with current regulations due to his length of service Army. It is acknowledged that the applicant has been diagnosed with and treated for PTSD at the VA and has a service-connected disability of 70% for PTSD. This determination alone, however, does not automatically mean that military medical disability/retirement is warranted. It is important to understand that the VA operates under different rules, laws, and regulations when assigning disability percentages than the Department of Defense (DOD). In essence, the VA will compensate for all disabilities felt to be unsuiting. The DOD does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting and line of duty. The applicant would need to address possible medical retirement due to his service in the Marines with the appropriate Marine/Navy Review Board. 6. On 19 November 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a response and/or a rebuttal. He did not respond. 7. By regulation, AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. 8. 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. 9. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-17 provides for the separation of Soldiers on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performances of duty. Such conditions may include, but are not limited to, disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired. 10. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requetss, the Board found relief was not warranted. Based upon the findings and recommendations of the medical advisory and a lack of any submitted rebuttal by the applicant, the Board concluded there was insufficient evidence of an error or injustice which would warrant a correction to the record. 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. 3/11/2020 X CHAIRPERSON Signed by: 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 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-17 provides for the separation of Soldiers on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performances of duty. Such conditions may include, but are not limited to, disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired. 5. 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. 6. 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. NOTHING FOLLOWS