BOARD DATE: 24 January 2020 DOCKET NUMBER: AR20170000888 APPLICANT REQUESTS: in an unclear request, in effect: * documentation of an in-service mental health condition * potential physical disability discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) medical records FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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: a. His records contain no mention of seeing mental health professionals when his mother passes away while he was serving in Kitzingen, Germany. He was flown home for the burial and upon his return to Germany, his unit was in the field. He then spoke with mental health professionals and a Chaplain and was diagnosed with severe depression, anxiety, and bipolar disorder. b. He stayed in the military and did his time, leaving the service honorably. He wants to file a claim, but is missing those medical records documenting the mental health treatment he received in the military hospital where he was seen. Lacking this documentation has hurt his life since leaving the service. c. He annotated on his application he is requesting reconsideration of a prior appeal decided in October 2016, with a docket number that appears to correspond to a VA claim. He does not have a prior case with the ABCMR. 3. The applicant enlisted in the Regular Army on 9 July 1981. 4. U.S. Army Regional Personnel Center, Wuerzburg Orders 146-206, dated 26 May 1983, authorized the applicant emergency leave for 20 days effective the date of the orders, due to the death of his mother. 5. His service medical records contain a DA Form 3349 (Physical Profile Board Proceedings), which show he received a temporary physical profile rating of “2” on 15 July 1983, for what is listed as an “acne problem.” The physical profile limited him to no shaving for 2 weeks and was to expire on 29 July 1983. 6. The applicant’s available records for review are void of any further service medical documentation. There is no evidence of record showing the applicant was diagnosed with or treated for a mental health condition during his period of service. 7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty on 8 July 1985, due to the completion of his term of service after 4 years of net active service and transferred to the U.S. Army Reserve Control Group (Reinforcement). 8. On 27 November 2019, the Army Review Boards Agency (ARBA) clinical psychologist/medical advisor, provided an advisory opinion, which states: a. There is no clear indication of what the applicant is requesting as he received an honorable discharge for the completion of required service. On his application he noted a desire to file a claim, but was missing records documenting visits to mental health and diagnosis of depression, anxiety, post-traumatic stress disorder (PTSD), and bipolar disorder. It is unclear if he is requesting the ABCMR find the records and/or he is filing a “claim” with the ABCMR for an unknown goal with the application. b. The applicant’s service records contain only one medical document, a shaving profile. He has no history of activation or deployment during his period of service. c. His VA medical records indicate he is not service-connected for any condition, medical or mental health. His VA records begin in March 2006 and his health conditions are listed as hypertension, hyperlipidemia, and diabetes. In November 2008 he was diagnosed with anxiety disorder, not otherwise specified. He also has current VA diagnoses of bipolar disorder and polysubstance use disorder for which he has a history of psychiatric and medication treatment through the VA. d. Given that the applicant’s request is unclear and he has an honorable discharge for completion of service, the ARBA clinical psychologist/medical advisor focused on determining whether or not the applicant has a behavioral health condition in-service and, if so, he should have been considered for a medical separation. Based on the available records, there is no evidence suggesting the applicant had an in-service psychiatric condition. Documentation outlines functioning both in-service and post- service, to include full-time employment and he does not have a VA service-connected disability. A copy of the complete medical advisory was provided to the Board for their review and consideration. 9. The applicant was provided a copy of the advisory opinion on 9 December 2019 and given an opportunity to submit comments, but he did not respond. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. The Board noted that there is no evidence of record showing the applicant was diagnosed with or treated for a mental health condition during his period of service or that he had any unfitting condition. There is no Army medical records of any of an in-service mental health condition. The applicant does not meet the requirements for consideration of a physical disability discharge. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not required to serve the interest of equity and justice in this case. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (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. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 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. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. 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. 3. 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. 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. a. Paragraph 3-2 states 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. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 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. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170000888 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1