ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 July 2109

	DOCKET NUMBER:  AR20170003230


APPLICANT REQUESTS: change of his honorable discharge to a medical discharge on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214
* Department of Veterans Affairs (DVA) Rating Decision, dated 5 September 2014
* DA Form 2823 (Sworn Statement)

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, in effect,

	a.  He applied to the medical review board in San Antonio, TX and was denied a medical retirement.  He states he read anyone who is above a Department of Veterans Affairs (DVA) 30% disabled rating, due to a service connected disability, should be compensated with a medical retirement.

	b.  He shares, his military record should state he received non-judicial punishment (NJP) under the provisions of an Article 15 during his time of service upon his return from Iraq.  He went absent without leave (AWOL), and later considered by his command to be a deserter because he was absent in excess of 30 days.  The applicant states he had an anxiety attack in a tank he was driving during a field training exercise (FTX).  He states he was 20 years old at the time and didn’t know what was happening to him.  He went AWOL the next day.

	c.  He states he returned (to his unit) since he felt he didn’t belong in the civilian world, and paid for his absence by losing his rank, money, and time due to him performing extra duty.  He explains he went out to bars, picked fights with guys on purpose, and was waiting for someone to look at him the wrong way to release his anger upon them.  When he returned from Iraq in 2003, he told his wife that he felt like going to the club and punching someone in the face.  His wife expressed his statement scared her.  The applicant states he was simply expressing to her how he felt and didn’t realize the scary person he had become.  He has hospitalized people due to his anger issues and states he is not proud of that.

	d.  He states he and others were instructed by their non-commissioned officers (NCOs) to fill out the post-traumatic stress disorder (PTSD) questionnaire as if nothing was wrong with them or they would be labeled negatively, and would be exempt from promotions and awards.  The applicant shares he currently has a DVA disability rating at 70% for PTSD, and would be (at the time of his application) applying for a reevaluation.  He states he believes his discharge needs to be changed from honorable to medical due to his service connected disability.

3.  The applicant provides:

	a.  A copy of  his DD Form 214, showing he received an honorable character of service in Item 24 (Character of Service).

	b.  DVA Rating Decision, showing the applicant was granted, in part, a 70% disability rating for PTSD, effective 12 May 2014.

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

	a.  He enlisted in the Regular Army on 11 April 2002.

	b.  He served in Iraq and Kuwait from 1 September 2002 through 26 August 2003 and 20 January 2005 through 10 January 2006.

	c.  His service record is void of circumstances and documentation showing he accepted NJP for being AWOL, for desertion, and documentation supporting a reduction in rank referenced by the applicant.

	d.  On 30 April 2006, the applicant was released from active duty, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, for the completion of required active service, with an honorable discharge.  The applicant enlisted into the Texas Army National Guard on 1 May 2006.  His DD Form 214 shows he completed 4 years and 20 days of active military service with no lost time.

	e.  He was awarded or authorized in Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214:

* Army Commendation Medal (3rd Award)
* Army Good Conduct Medal
* Iraq Campaign Medal
* National Defense Service Medal
* Global War on Terrorism Expeditionary Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Overseas Service Ribbon
* U.S. Army/U.S. Air Force Presidential Unit Citation
* Combat Action Badge (2nd Award)

4.  On 4 May 2017, a medical advisory opinion was received from the Army Review Boards Agency (ARBA) medical advisor/psychologist in the processing of this case.

5.  The medical advisor/psychologist opined based on a thorough review of available medical records and systems,

	a.  The applicant did meet medical retention standards in accordance with 
Chapter 3, Army Regulation (AR) 40-501 (Medical Fitness Standards), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service.

	b.  It is unknown if the applicant’s mental-health conditions were considered at the time of his discharge from the Army.

	c.  A review of available documents did not discover sufficient evidence of a mental-health considerations that would have mandated referral to a Board to evaluate him for a medical retirement.

6.  On 5 May 2017, the applicant was provided a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or comments.  He was given 30 days to provide a rebuttal or any comments.

7.  On 6 June 2017, the applicant responded to ARBA, via email.  Within the email he stated, in effect, he attempted to obtain sworn statements from many of his battle buddies, but has been mostly unsuccessful.  He also added he had been trying to get tested for traumatic brain injury (TBI), but wasn’t able due to the undocumented incident he experienced while on the FTX.  He did provide a DA Form 2823 (Sworn Statement) on behalf of SPC X___, one of his comrades, to attest to the events witnessed as described by the applicant.  The document does not contain a signature or date it was drafted and does not appear to be consistent with the applicant’s statement. 

8.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations.
9.  The Board should consider the applicant’s submissions 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 findings stating no documentary evidence showed a need for referral for medical retirement, the Board concluded there was insufficient evidence to show an error or injustice which would warrant making a change to 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, 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 40-501, chapter 3, provides the various medical conditions and physical defects which may render a Soldier unfit for further military service.  The medical conditions and physical defects, individually or in combination, are those that:

a. Significantly limit or interfere with the Soldier’s performance of their duties.

b. May compromise or aggravate the Soldier’s health or well-being if they were to 
remain in the military service.

c. May compromise the health or well-being of other Soldiers.

d. May prejudice the best interests of the Government if the individual were to 
remain in military service.

3.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.  The regulation provides that the military treatment facility (MTF) will provide a thorough and prompt evaluation when a Soldier’s condition becomes questionable in respect to physical ability to perform duty.  Unit commanders will ensure that any physical defects impacting on a Soldier’s performance of duty are reflected in the Soldier’s evaluation report and refer the Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating.  It also states that the MTF commander having primary medical care responsibility will conduct an evaluation of the Soldier referred for evaluation.  If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a medical evaluation board (MEB).  The MEB will recommend referral to a physical evaluation board those Soldiers who do not meet retention standards.

4.  AR 635-200, in effect at the time, governs the separation of enlisted personnel.

	a.  Paragraph 3-7a states that an honorable discharge is given when the quality of 
the Soldier's service has generally met standards of acceptable conduct and duty performance.

5.  On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service.

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.


ABCMR Record of Proceedings (cont)	 AR20170003230


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