ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 August 2019 DOCKET NUMBER: AR20170010102 APPLICANT REQUESTS: in effect, honorable discharge due to physical disability in lieu of general discharge under honorable conditions due to a pattern of misconduct. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * partial DA From 7652 (Physical Disability Evaluation System (PDES) Commander’s Performance and Functional Statement * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings * MEB Integrated Disability Evaluation System (IDES) Narrative Summary (NARSUM) * IDES evaluation for insomnia, depression, post-traumatic stress disorder (PTSD), dated 7 February 2013 * IDES evaluation for hearing loss, dated 11 February 2013 * IDES evaluation for vision loss, dated 11 February 2013 * IDES associated medical records * DD Form 214 (Certificate of Release or Discharge from Active Duty), Member -1 copy * DD Form 214, Member-4 copy * partial Department of Veterans Affairs (VA) Rating Decision, dated 13 April 2017 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: a. His diagnosis of PTSD should have not met military retention standards and the rating should have been greater than 50 percent. His MEB was expedited at the request of his company commander and he feels a comprehensive review of all the relevant evidence was not diligently considered. b. His MEB was initiated in the middle of January 2013 and 2 weeks later, in early February 2013, he was evaluated as part of the MEB process. At that time, he received a diagnosis of chronic PTSD. Based on these findings from the VA, which was prior to his separation, he should have received a rating for his diagnosis of PTSD for the MEB. This information was available to the evaluators, but were not considered disqualifying for retention, resulting in a disability rating of 20 percent for his knees. c. In April 2017, after his discharge, he was reevaluated by the VA and was ultimately awarded a 100 percent service-connected disability rating for his functional limitations resulting from his PTSD. 3. The applicant enlisted in the U.S. Army Reserve on 26 June 1992 and completed 14 years and 6 months of total inactive service prior to enlisting in the Regular Army on 10 April 2008. 4. He served in Iraq from 20 December 2008 through 10 December 2009. 5. He underwent three VA Compensation and Pension (C&P) medical examinations as part of the IDES process. a. The first exam on 7 February 2013, evaluated him for insomnia, depression, and PTSD. The applicant stated in his history he was not receiving any treatment for his condition, has not received psychotherapy for his mental condition within the past year, has not been hospitalized for psychiatric reasons, and did not make any emergency room visits for his psychiatric problems. He was diagnosed with PTSD for the claimed conditions of insomnia, depression, and PTSD. b. The second exam, on 11 February 2013, evaluated him for hearing loss related to his claims of tinnitus that began in 2009. Based on the examination, the applicant did not have hearing loss in accordance with VA standards c. The third exam, on 11 February 2013, evaluated his eyes for vision loss. Based on the examination, he was diagnosed with compound myopic astigmatism (optical defect resulting in blurred vision) 6. The applicant provided a partial DA Form 7652 (pages 1-4 of 5 pages), dated 28 February 2013, which shows his commander annotated the following on the form with regard to performance and function: * the applicant was pending administrative separation under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for misconduct * he previously held the rank of corporal prior to receiving nonjudicial punishment under Article 15 of the Uniform Code of Military Justice on 4 November 2011, for being absent without leave (AWOL) * the applicant’s current referral to the MEB was not the result of evaluation by a military occupational specialty (MOS)/Medical Retention Board * the applicant performed his duties in his MOS * he was in an appropriate position for his grade and MOS * his medical conditions/limitations did not affect unit accomplishment * he was not recommended for retention * the remainder of the form is alternately not filled out and/or pages are missing 7. An MEB IDES NARSUM, dated 5 March 2013, states in pertinent part: a. The applicant was pending administrative discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, concurrent with his MEB. The triggering events for his pending discharge were that he received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 4 November 2011 for being absent without leave (AWOL); NJP on 27 July 2012 for speeding, and the most current event involved driving at excessive speed with suspended registration. b. He failed retention standards for: * right knee tri-compartmental osteoarthritis * left knee osteoarthritis * left Achilles enthesopathy (disorder involving the attachment of a tendon or ligament to a bone) with left ankle strain c. He met retention standards for: * PTSD * right knee scars status post arthroscopic meniscectomies * varus deformity left humerus (inward angulation of the distal segment of a bone or joint) after fracture and healing with non-union * left shoulder rotator cuff tendinitis and impingement * hypertension * Q waves on electrocardiogram consistent with old myocardial infarction * bilateral intermittent tinnitus * compound myopic astigmatism ou * pseudofolliculitis barbae (PFB) (ingrown hair in the beard area) is not a disability * bilateral pes planus (flat feet) d. The referring physician’s DA Form 7652 (Physical Profile), dated 11 December 2012, indicated his condition of right knee tricomparmental osteoarthritis precluded him from performing basic duties including carrying and firing his individually assigned weapon, evading direct and indirect fire, riding in a military vehicle for at least 12 hours per day, wearing Kevlar, body armor, or load-bearing equipment for at least 12 hours per day, wearing boots and uniform 12 hours per day, wearing chemical protective gear, and living in an austere environment without worsening the medical condition. e. With regard to PTSD, there are no consistent complaints in the applicant’s electronic medical records and no physical profiles had been written for this condition. It was deemed medically acceptable and did not present an impairment for further military duty or social/industrial adaptability. He was psychiatrically cleared for administrative discharge on 2 August 2012 with no symptoms of PTSD noted and a medical exam dated 7 January 2013, noted PTSD to be negative. There is no record of medication for behavioral health disorder or insomnia and this disorder is well controlled without treatment if its onset was in 2008 and is not expected to result in significant work, community, social, or interpersonal function. 8. A DA Form 3947, dated 6 March 2013, shows an MEB convened at Winn Army Community Hospital on the date of the form and found the following: * right knee tri-compartmental osteoarthritis did not meet retention standards * left knee osteoarthritis did not meet retention standards * left Achilles enthesopathy with left ankle strain did not meet retention standards * PTSD met retention standards * left humerus fracture, healed with non-union and varus deformity and left shoulder rotator cuff tendinitis and impingement met retention standards * PFB does not constitute a physical disability * hypertension met retention standards * left pes planus met retention standards * right pes planus met retention standards * bilateral intermittent tinnitus met retention standards * compound myopic astigmatism met retention standards 9. The applicant’s discharge packet is not in his available records for review. 10. His DD Form 214, shows he was discharged on 18 July 2013, under the provisions of Army Regulation 635-200, paragraph 14-12b for a pattern of misconduct after 5 years, 3 months, and 9 days of net active service this period. His service was characterized as general, under honorable conditions. 11. He provided a partial VA Rating Decision which shows he was awarded an increase in his PTSD service-connected rating from 30 percent to 100 percent effective 13 April 2017. 12. On 8 November 2017, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion. The ARBA senior medical advisor concluded The applicant met medical retention standards for PTSD during his service. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character, reason, and/or medical retention determination for the discharge in this case. The applicant did not have mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. A copy of the complete medical advisory was provided to the Board for their review and consideration. 13. The applicant was provided a copy of the advisory opinion on 14 November 2017, and given an opportunity to submit comments. He replied on 6 December 2017, stating: a. He answered “no” to the questions on his DD Form 2796 (Post-Deployment Health Assessment) because he did not want to appear weak. At 6’6” tall, among his fellow Soldiers within his unit he was seen as a physically imposing person. Within his unit you would hear other Soldiers describing Soldiers diagnosed with PTSD as being weak and sick as if they had some type of disease. He was concerned if he put down what he witnessed and how it affected him he would be portrayed in the same manner. b. When he had his medical disability examination with the VA medical provider at QTC Medical Service Inc., he felt more comfortable telling him his problems and what he witnessed on his deployment. He thought it would be unlikely that anyone would hear about the fears he experienced. c. As for not being dispensed any medications for PTSD, that was not a concern for him. Shortly after his experience while deployed he started to self-medicate with alcohol. He felt he could deal with his thoughts by suppressing them with alcohol. He continues to have sleep problems caused by his racing thoughts about his experiences and struggles to find ways to avoid the memories or anything that reminds him about his time downrange. He feels ashamed that he was unable to open up and share how he felt. While alcohol did not fix things, it did numb the feelings for a short while and give him the courage to act stronger. He now realizes alcohol is not the answer. 14. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. 15. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. a. The case of a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless: * the investigation ends without charges * the officer exercising proper court-martial jurisdiction dismisses the charges * the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence b. An enlisted Soldier may not be referred for, or continue, physical disability processing action when action has been started under any regulatory provision which authorizes a character of service of under other than honorable conditions. If the case comes within these limitations, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation. This authority may not be delegated. A case file may be so referred if the general court-martial convening authority finds the following: * the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions * other circumstances warrant disability processing instead of alternate administrative separation 16. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. Based upon the medical advisory finding no evidence of a medical disability or condition which would support a change to the character, reason, and/or medical retention determination for the discharge, the Board found insufficient evidence of an error or injustice which would warrant making a change to the applicant’s 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. 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 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. 3. 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). 4. Army Regulation 635-40 (Standards of Medical Fitness) 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. 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. The case of a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless: * the investigation ends without charges * the officer exercising proper court-martial jurisdiction dismisses the charges * the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence c. An enlisted Soldier may not be referred for, or continue, physical disability processing action when action has been started under any regulatory provision which authorizes a character of service of under other than honorable conditions. If the case comes within these limitations, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation. This authority may not be delegated. A case file may be so referred if the general court-martial convening authority finds the following: * the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions * other circumstances warrant disability processing instead of alternate administrative separation 5. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 6. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. ABCMR Record of Proceedings (cont) AR20170010102 7 1