ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 April 2019 DOCKET NUMBER: AR20170015105 APPLICANT REQUESTS: upgrade of his general discharge under honorable conditions to honorable, but in effect is requesting an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * U.S. Army Human Resources Command Orders D-07-818997, dated 22 July 2008 * Standard Form 600 (Chronological Record of Medical Care), dated 23 June 2009 * email correspondence from Trial Defense Counsel, dated 1 April 2010 * letter from treating psychiatrist, Doctor J___ K____, dated 19 September 2011 * Department of Veterans Affairs (VA) Administrative Decision, dated 28 October 2011 * illegible Northwestern Memorial Hospital, Patient Discharge Instructions * VA Rating Decision, dated 17 October 2011 * VA letter, dated 29 May 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 (ABCMR) 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: a. There were many circumstances surrounding his UOTHC discharge on 28 September 2009, most notably his medical condition and mental health at the time. Trial Defense Service sent him to their physician to evaluate his physical and mental conditions at the time. The entire process of examination and evaluation occurred within a 3-5 minute period of time. It appeared to be unprofessionally fast and the goal appeared to be to get everyone to rubber stamp a medical exam to get the patients out in a very fast manner. He thinks the goal was to examine everyone quickly so there is a documented exam, to quickly get folks out to avoid trials, and in order to not cause a burden on the Army system. Everyone was rushed out and pressured to take the UOTHC discharge. The circumstances surrounding his discharge were different from most others because he actually had a viable defense. b. Upon entering the Personnel Control Facility, he began the out-processing procedures. He met with Trial Defense Services in order to review the options with his discharge. The Trial Defense Services Counsel assigned to him was Captain (CPT) O____. During his fact-to-face meeting with CPT O____, he informed him of his mental health diagnosis of schizophrenia and his present state of mind surrounding his absence without leave (AWOL). CPT O____ referred him to Mental Health for a mental health care provider to concur with the diagnosis and question his sanity. c. An appointment was made with J____ P____ at Ireland Army Community Hospital (ACH), Community Mental Health Clinic at, and he was seen within 24 hours of the request from CPT O____. What did not make sense was that he spent less than 3 minutes with J____ P____ at Community Mental Health and approximately five questions were asked. There were no in-depth questions concerning his diagnosis. He was only allowed to respond to yes and no questions and once they were answered he was hurried out of the office. He was not allowed to give any information concerning his diagnosis of schizophrenia, hospitalizations, or mental state at the time. d. There is a reference in his medical record that the medical provider J____ P____ had a 60-minute face-to-face encounter with him, which never happened. The medical record also indicates a 3-minute appointment from start to finish and he was given a clean bill of health, free from any behavioral health problems. He spent less than 3 minutes with this provider with about five questions asked. There were no tests, no in- depth question as with CPT O____, what made the illness apparent and whereby he could communicate his symptoms effectively. He did not have a 60-minute face-to-face exam and he was given a clean bill of mental health. e. He had been diagnosed with schizophrenia while AWOL with intensive inpatient treatment at Northwestern Memorial Hospital and with Doctor A____ at Northwestern Physicians Group. He then attended outpatient treatment at Alexian Brothers Behavioral Health Hospital from November 2008 until March 2009, when we could no longer afford the outpatient treatment. Afterward, he still continued to see a psychiatrist for medication that was so strong he had to have his blood levels checked weekly. f. He went back to see CPT O____ after his mental health evaluation and he said he could fight the AWOL given that he was diagnosed with schizophrenia and the insanity defense was clear to this case, but it would take months and he was not getting any treatment there. CPT O____ said it was best to get out as quickly as he could and get the necessary medical treatment at home, as he was not on medication at the time. g. He comes from a military family. His father, sister, brother, as well as he for a time, all served in the U.S. Army in the same timeframe in 2008. He probably would be in the U.S. Army Reserve (USAR) had he not gotten sick. Every member of his immediate family has deployed since 9/11. For him, God or life chose a different path. He is still suffering from schizophrenia as he writes this letter. Please understand that at the time of his discharge, he was not able to make sound decisions. While the medical officer cleared him, he has no doubt in his mind that he just rapidly cleared him to expedite his out-processing. He has over seven inpatient stays for treatment and has been seeing a psychiatrist on a regular basis since 2008. This disease has stressed him and his family at one point or another financially, mentally, and physically. But that’s life. h. He believes he did the honorable thing by looking after his health and not being a burden on the Army with Trial Defense Services and a court-martial. Even though he could have gotten the AWOL charge dropped, it would have taken time and he was still sick. He was still in the first months of being diagnosed schizophrenic and his understanding of the disease and what needed to be done was not right. Additionally, his medication was not right. So, at the advice of Counsel, he took the UOTHC discharge even though he had grounds to have it all thrown out in order to get immediate medical treatment. He was home within 1 week and he was admitted to the hospital within 24 hours of his discharge where the VA stabilized him. He continued private care for years until the VA did their determination on him and decided he was not mentally competent and did not understand the concept of why he was AWOL. He is currently under continued care with CPT J____ L____ at the VA Hospital. He feels that the court martial system is not designed to function with those who are ill with behavioral health or mental health issues. i. At no time prior to being AWOL was he receiving treatment. He was beyond delusional at the time he decided to be AWOL and during his time with Counsel and the physician who completed his 3-minute examination. There were no conversations with the provider doing his exam that would support his schizophrenia diagnosis and all that transpired were questions such as, “Do you want to kill yourself?”, “Do you want to kill someone else?”, “Who is the President of the United States?”, with a conclusion that he had no mental health issues. Due to his mental condition during his conversations with Counsel, there was no possible way he could have endured the entire process to have the AWOL charges dropped and await some other type of discharge. j. His original discharge of UOTHC was upgraded to a general discharge. At this time, he is applying for an upgrade of his general discharge, under honorable conditions, to an honorable discharge. 3. The applicant enlisted in the Army National Guard (ARNG) on 2 April 2003 and attended Active Duty for Training for 1 month and 10 days, from 8 July 2004 through 17 August 2004, when he was honorably released from Active Duty for Training (ADT), discharged from the Reserve of the Army and returned to the ARNG. His DD form 214 (Certificate of Release or Discharge from Active Duty) shows his discharge was due to erroneous entry. 4. His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he was discharged from the ARNG on 1 September 2004 due to erroneous enlistment or extension after 1 year, 4 months, and 8 days of net service. His service was uncharacterized. The complete facts and circumstances surrounding his erroneous enlistment are not in his available records for review. 5. On 17 September 2007, he enlisted in the USAR and attended ADT from 11 October 2007 through 17 January 2008 for Advanced Individual Training, and was released from ADT due to the completion of required active service. 6. He enlisted in the Regular Army on 16 July 2008. 7. A DD Form 616 (Report of Return of Absentee) shows his duty disposition was AWOL effective 27 September 2008. He was apprehended by civilian authorities and returned to military control as a deserter on 2 June 2009. 8. A Standard Form 600, dated 23 June 2009, shows: * he was given a mental status evaluation at the Ireland ACH, Community Mental Health Clinic by the provider J____ P____ on the date of the form based on command referral for discharge * among his listed problems were insomnia, adjustment disorder with anxiety, therapy for drug and alcohol abuse/dependence, and adjustment disorder with disturbance of emotions * the applicant reported he disagreed with his discharge and verbalized he wanted to be medically discharged or remain in the Army * he denied any hallucinations * he was cleared to participate in any administrative proceedings * he was given no psychiatric diagnosis * total face-to-face/floor time was noted to have been 60 minutes 9. On 1 July 2009, he was charged with being AWOL from his organization from on or about 27 September 2008 through on or about 2 June 2009. 10. The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, as a result of his charge of being AWOL from 27 September 2008 through 2 June 2009. The date on his request for discharge in lieu of trail by court-martial is illegible on the form. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. He did not submit statements in his own behalf. 11. An endorsement from his immediate commander, dated 31 August 2009, states he recommended approval of the applicant’s request and recommended discharge UOTHC. It further states there did not appear to be any reasonable grounds to believe the applicant was mentally defective, deranged, or abnormal at present or at the time of the misconduct. 12. On 17 September 2009, the approval authority approved the request for discharge and directed the applicant’s discharge UOTHC with reduction to the rank/grade of private/E-1. 13. He was discharged accordingly on 28 September 2009, after 5 months and 26 days of net active service this period, with lost time from 27 September 2008 through 2 June 2009. His service was characterized as UOTHC. 14. He provided a copy of email correspondence from CPT O____, Trail Defense Counsel, Fort Knox Trial Defense Service, to officials at the VA. It states he saw the applicant in June 2009, prior to his separation from the Army. He remembered the applicant displayed symptoms indicative of mental health illness and he requested his command send him back for additional mental health evaluation. His mental health condition was reported to have occurred while he was on active duty. 15. On 3 December 2009, he initially applied to the Army Discharge Review Board (ADRB), requesting an upgrade to his characterization from UOTHC to honorable and a change to his reason for discharge to medical because he suffered from paranoia and schizophrenia, rendering him mentally incompetent. The applicant appeared in person to testify on 7 November 2011. The ADRB denied his request in full, having determined his discharge was both proper and equitable. 16. He provided a letter from Doctor J____ K____, his then treating psychiatrist, dated 19 September 2011. He states: a. The applicant had been a patient in his care since 15 October 2010, where he regularly saw him for treatment of paranoid schizophrenia. He had been compliant with his prescribed treatment regimen and while he has been improving on appropriate antipsychotic medication, the applicant still exhibited significant residual psychosis due to his illness. b. The applicant completed numerous psychological evaluations and was treated at Northwestern Memorial Hospital as a psychiatric inpatient for 21 days from November to December 2008. He believes the Government gave him LSD during his military training which resulted in his psychiatric condition and believes they followed him after being AWOL, which led to his hospitalization. It is reasonable to conclude his persecutory delusions prohibited him from understanding his beliefs were illogical. While he was technically AWOL, in reality he was suffering a severe psychosis and acting strictly out of self-preservation. In light of the above, he requests the applicant’s discharge be upgraded to honorable. 17. A VA Rating Decision, dated 17 October 2011, determined the applicant was insane at the time of his discharge from the Army. A treatment report from the Northwestern Memorial Hospital showed he was admitted to the emergency room on 18 November 2008 then admitted for a psychotic admission for the period of 18 November 2008 through 2 December 2008. He was assessed as having schizophrenia, paranoid type with multiple pas hospitalizations. He was then transferred to the VA Medical Center. 18. A VA Administrative Decision, dated 28 October 2011, shows the applicant’s service period from 16 July 2008 through 28 September 2009, prior to his AWOL, was considered general, under honorable conditions for VA purposes because insanity was an issue at the time he was AWOL; therefore, he is entitled to receive VA benefits based upon this period of service. In making this determination, medical evidence from Northwestern Medical Center shows he was diagnosed with schizophrenia during a period of treatment there from 18 November 2008 through 2 December 2008. The VA found the applicant was mentally unsound at the time of his AWOL incident. 19. The applicant applied to the ABCMR in 2012, requesting correction to his DD Forms 214 to reflect various awards, service medals, military occupational specialty and training. He did not request a change to the narrative reason or characterization of his discharge. 20. The ABCMR approved his requests on 5 March 2013, and his records contain two DD Forms 215 (Correction to DD Form 214) reflecting the corrections. 21. There is no evidence of record his discharge was ever upgraded to general, under honorable conditions. The VA is considering his pre-AWOL, Regular Army period of service as general, under honorable conditions for VA purposes only. 22. A letter from the VA, dated 29 May 2017, shows he has more than one service- connected disabilities. He is being paid at the 100 percent rate because he is unemployable due to his service-connected disabilities. His disabling conditions are not listed on the letter. 23. On 18 December 2017, the Army Review Boards Agency (ARBA) psychiatrist provided an advisory opinion. The ARBA psychiatrist stated: a. A review of the applicant’s electronic medical record (AHLTA) shows he was initially seen by Behavioral Health (BH) on 5 December 2007 (during his USAR enlistment), complaining of worsening anxiety. He was diagnosed with adjustment disorder with anxiety and placed on paroxetine (an antidepressant medication) and quetiapine (an antipsychotic medication) by an unknown provider. The BH took him off the antipsychotic medication ad added clonazepam (an antianxiety medication) to his paroxetine. b. On 19 December 2007, he was seen by Psychology. During this appointment he reported that he felt the sides of his body were “imbalanced.” He was seen by his primary care provider on 19 December 2007 and his neurological exam was within normal limits. He was prescribed medication for his balance issues. c. Shortly after his Regular Army enlistment, he was seen on 5 August 2008 by Psychology where he presented with complaints that his recruiter lied to him about becoming a Ranger and reporting his drill sergeant gave him a red pill which he believed was LSD and may have brainwashed him. He reported feeling as if he were chosen to do certain things which would become clear to him if he could see the clues around him. He was diagnosed with delusional disorder and was admitted to the psychiatric unit at Martin Army Community Hospital, where he declined to do psychological testing. He was discharged on 12 August 2008 with a diagnosis of adjustment disorder. He was reported AWOL on 27 September 2008. d. On 23 June 2009, he received a command directed mental health evaluation prior to discharge, after his 9-month AWOL. He was given no psychiatric diagnosis and was returned to his command. On 23 July 2009, he was seen for a medication follow up by BH. The accompanying note states he was discharged from the VA on 22 July 2009, where he was admitted for 2 weeks due to psychosis, experiencing paranoid delusions. e. Notwithstanding the command directed mental status evaluation on 23 June 2009, the bulk of his BH notes in his military medical records confirm he was psychotic prior to being AWOL. While AWOL, he continued to be psychotic, as evidenced by his multiple psychiatric hospitalizations and he remained so after his return to military control. f. Therefore, it is the opinion of the ARBA psychiatrist the applicant has a psychiatric condition which is mitigating for the misconduct leading to his UOTHC discharge from the Army. His psychosis affected his decisional capacity and impaired his ability to participate in his own defense. As such, both the characterization and the narrative reason for his UOTHC discharge are mitigated by his illness. Furthermore, the record indicates the applicant’s record should be referred to the Integrated Disability Evaluation System (IDES) for consideration of medical disability/retirement. A copy of the complete medical advisory was provided to the Board for their review and consideration. 24. The applicant was provided a copy of the advisory opinion on 19 December 2017 and given an opportunity to submit comments. He did not respond. 25. 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, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 26. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of 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. 27. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is warranted. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. There is evidence of behavioral-health concerns within his record prior to the misconduct resulting in his request for discharge in lieu of court-martial. The advisory official noted the medical condition may have mitigated his misconduct. The Board agreed the misconduct does not warrant an upgrade to an honorable discharge; however, an under honorable conditions characterization is appropriate based upon the recorded misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 28 September 2009 showing his characterization of service as general, under honorable conditions. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing his characterization of service to honorable. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. 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, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on 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 misconduct that led to the discharge. 3. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of 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. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. 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. d. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. 5. 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. 6. 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. 7. 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. 8. Title 38, U.S. Code, sections 1110 and 1131, permits 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015105 13 1