ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 September 2020 DOCKET NUMBER: AR20180000006 APPLICANT REQUESTS: a. through counsel and via remand from the U.S. District Court for the District of Columbia, reconsideration of his previous request for correction of his records to show he retired by reason of physical disability; and b. as a new issue, approval of retroactive Combat-Related Special Compensation (CRSC) effective 1 January 2008 for combat wounds from gunfire and mortar/rocket fire during the applicant's service in Vietnam. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Supplemental Statement of (Applicant) (14 pages) * Exhibit A – * letter from B____ with translation, dated 8 and 9 May 2017 * email from K____ with translation, dated 15 May 2017 * Exhibit B – * U.S. District Court for the District of Columbia Settlement and Dismissal in Civil Action Number 1:15-cv-01047 * letter from the National Personnel Records Center, dated 14 December 2015 * letter to the VA, dated 15 February 2016 * letter from the VA, dated 4 April 2016 * letter from the applicant's Congressional representative, dated 16 May 2016, with letter from the applicant * email between the applicant's counsel and a Department of Justice representative, dated 4 and 7 March 2016 * email between the applicant and his counsel, dated 24 September 2016 and 17 October 2016 * email between the applicant's counsel and a Department of Justice representative, dated 18 and 19 October 2016 * Exhibit C – * letter from the Army Review Boards Agency, dated 17 October 2012 * letter from the Army Review Boards Agency, dated 23 August 2012 * letter from the Army Review Boards Agency, dated 10 August 2012 * letter to the Army Review Boards Agency, dated 27 July 2012 * letter from the Army Review Boards Agency, dated 2 August 2011, with ABCMR Docket Number AR20110000723, dated 26 July 2011 * Exhibit D – * VA Progress Notes, printed 28 February 2013 * VA Rating Decision, dated 26 March 2009 * VA Compensation and Pension Examination Report, dated 31 August 1995 * VA Rating Decision, dated 23 June 1995 * VA Form 21-4138 (Statement in Support of Claim), dated 26 September 1994 * Request for Medical/Dental Records or Information, dated 9 April 1981 * Standard Form 513 (Clinical Record – Consultation Sheet), dated 16 January 1981 * VA Request for Outpatient Medical Services, dated 28 October 1980 * VA Form 21-4138, dated 29 September 1980 * VA Form 21-2507 (Request for Physical Examination), dated 25 September 1979 * VA Form 21-526e (Veteran's Application for Compensation or Pension at Separation from Service), undated * Exhibit E – * Certificate of Dissolution of Marriage, dated 14 March 2011, with first page of Final Judgment for Dissolution of Marriage * second page of an unidentified beneficiary form * VA Report of General Information, dated 1 September 2010 * Decree of Dissolution of Marriage, dated 2 April 1981 * Exhibit F – * DD Form 214 (Report of Separation from Active Duty) for the period ending 9 August 1979 * DA Form 2 (Personnel Qualification Record – Part I) * DA Form 2-1 (Personnel Qualification Record – Part II) * DA Form 2496 (Disposition Form), dated 9 August 1979 * memorandum from Walter Reed Army Medical Center (WRAMC), dated 9 August 1979, subject: Reason for Separation * DA Form 3082 (Statement of Medical Condition), dated 9 August 1979 * 1st endorsement from WRAMC, undated, subject: Discharge (including Resignation) from All Status * Standard Form 88 (Report of Medical Examination), dated 4 August 1979 * Standard Form 93 (Report of Medical History), dated 6 August 1979 * Headquarters, 97th General Hospital, Orders 53-1, dated 19 March 1979 * Standard Form 502 (Clinical Record – Narrative Summary), dated 12 March 1979 * Standard Form 600 (Health Record – Chronological Record of Medical Care), dated 1 March 1979 * DA Form 1695 (Oath of Extension of Enlistment), dated 22 February 1979 * DA Form 3349 (Medical Condition – Physical Profile Record), dated 20 February 1979 * pages 3, 4, and 5 of Standard Form 502, dated 22 January 1979 * Standard Form 502, dated 5 December 1978 * DA Form 3647-1 (Clinical Record Cover Sheet), dated 18 November 1978 * Standard Form 516 (Medical Record – Operation Report), dated 7 December 1978 * Standard Form 513, dated 20 November 1978 * Standard Form 513, dated 23 August 1977 * Standard Form 513, dated 22 November 1976 * Standard Form 513, dated 5 May 1976 * DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States), dated 12 May 1976 * Exhibit G – * VA medical document, undated * letter from the VA, dated 8 September 1976 * VA Form 21-6796 (VA Rating Decision), dated 1 September 1976 * VA Form 10-1000 (Hospital Summary), dated 11 May 1976 * Standard Form 507 (Clinical Record), undated * VA Request for Information, dated 22 March 1976 * VA Form 21-2507 (VA Request for Physical Examination), dated 10 June 1976 * VA Veteran's Application for Compensation or Pension, dated 21 May 1976 * VA Income – Net Worth and Employment Statement, undated * letter from the VA, dated 20 February 1976 * Exhibit H – * DD Form 214 (Report of Separation from Active Duty) for the period ending 17 December 1970 * Headquarters, Fort Huachuca, Special Orders Number 39, dated 14 December 1970 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 13 September 1970 * memorandum, dated 2 April 1971, subject: Line of Duty Determination * DD Form 4 (Enlistment Contract – Armed Forces of the United States), dated 30 September 1968 * Exhibit I – * letter from the VA, dated 7 August 2013 * VA Rating Decision, dated 31 July 2013 * VA Rating Decision, dated 31 July 2013 * letter from the VA, dated 1 October 2009 * VA Rating Decision, dated 25 August 2009 (page 1 only) * Exhibit J – * U.S. Army Regional Personnel Center Frankfurt Orders 59-24, dated 28 February 1978 * U.S. Army Regional Personnel Center Frankfurt Orders 180-42, dated 29 June 1978 * DA Form 4187 (Personnel Action), dated 17 July 1978 * Headquarters, V Corps Personnel and Administration Battalion, 1st indorsement, dated 11 August 1978, subject: Deletion of Extension * Standard Form 545 (Laboratory Report Display), dated 28 September 1978 * Standard Form 513, dated 27 November 1978 * DA Form 2985 (Patient Admission Information), dated 5 December 1978 * DA Form 3647-1, dated 15 December 1978 * DA Form 3647-1, dated 22 December 1978 * DA Form 2985, dated 22 January 1979 * Standard Form 550 (Urinalysis), dated 22 January 1979 * DA Form 2985, dated 22 January 1979 (duplicate) * DA Form 3349, dated 20 February 1979 (duplicate) * DA Form 2647-1 (Clinical Record Cover Sheet), dated 21 March 1979 * Exhibit K – U.S. District Court for the District of Columbia, Memorandum Opinion Order in Civil Action Number 14-ev-0094 (J____), signed 31 July 2015 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110000723 on 26 July 2011. 2. Counsel states: a. Pursuant to the U.S. District Court for the District of Columbia Settlement and Dismissal in Civil Action Number 1:15-cv-01047, Dupes v. McHugh, the ABCMR agreed to reconsider its previous determination in Docket Number AR20110000723, dated 26 July 2011. b. The applicant requests: (1) retroactive disability retirement effective 9 August 1979 for PTSD with a minimum disability rating of 50 percent and (2) approval of retroactive Combat-Related Special Compensation (CRSC) effective 1 January 2008. c. The applicant is currently under evaluation by the Department of Veterans Affairs (VA) for a traumatic brain injury (TBI) and multiple sclerosis resulting from exposure to Agent Orange. x. The applicant enlisted in the Regular Army on 30 September 1968 for an active duty term of 3 years. 3. His DA Form 2-1 shows he served in Vietnam from on or about May 1969 through February 1971. His unit of assignment is not of record. 4. The Statement of Medical Examination and Duty Status, dated 13 September 1970, shows he was admitted to the 483d U.S. Air Force Hospital, Cam Ranh Bay, Vietnam, on 13 September 1970 for treatment of multiple fragment wounds to both his lower extremities and back. a. Item 11 (Medical Opinion), indicating whether the injury was or was not incurred in the line of duty, states "ATTENDING PHYSICIAN HAS DEPARTED THIS COMMAND." b. Item 15 (Details of Accident or History of Disease), item 30 (Details of Accident – Remarks), item 31 (Formal Line of Duty Investigation Required), and item 32 (Injury is Considered to Have Been Incurred in Line of Duty) are blank. 5. His name is not shown on the Department of the Army Office of the Adjutant General Casualty Division Casualty Reference Name Listing for the period 1 January 1961 through 30 June 1973, a battle and non-battle listing of Soldiers who were killed, wounded, sick, captured, or missing during their service in Vietnam. 6. He was honorably discharged from the Regular Army effective 16 December 1970 for the purpose of immediate reenlistment. His DD Form 214 does not show award of the Purple Heart. 7. His service and medical treatment records for this period are not available for review. 8. He reenlisted in the Regular Army on 17 December 1970. 9. A memorandum from the Assistant Adjutant General, 2d Squadron, 1st Cavalry Regiment, to the Commanding General, U.S. Army Vietnam, dated 2 April 1971, subject: Line of Duty Determination, forwarded the applicant's Statement of Medical Examination and Duty Status, dated 13 September 1970, for action. The Assistant Adjutant General stated the unit redeployed in October 1970 and the headquarters had no information on which to base a determination. 10. His DA Form 2-1 shows he served in Germany from on or about 20 February 1971 through 23 December 1973. 11. The Consultation Sheet, dated 14 April 1972, he presented to the 97th General Hospital Urology Clinic, Frankfurt, Germany, for recurrent symptoms of cystitis (bladder inflammation/infection) with hematuria (blood in urine). The examining physician noted he had gross terminal hematuria and dysuria (painful urination) in January 1972 which resolved with antibiotics. He was currently without symptoms. 12. The Clinical Record Cover Sheet, dated 21 May 1974, shows he reported he fell down a flight of stairs on 19 May 1974. The examining physician diagnosed him as having a head injury with no sequelae (condition following or occurring as a consequence of another condition). 13. The Chronological Record of Medical Care, dated 6 April 1975, shows he presented to the Raymond W. Bliss Army Health Center, Fort Huachuca, AZ, and complained he injured himself in a fall from a horse. The examining physician determined he had a superficial laceration on the back of his head and an abrasion on his left forearm. 14. His Report of Medical Examination in connection with his expiration term of service, dated 17 October 1975, shows the examining physician noted no abnormalities. He was assigned a physical profile rating of "1" under the physical capacity or stamina, upper extremities, lower extremities, hearing and ears, and psychiatric functional capacity factors, indicating no physical limitations. He was assigned a physical profile rating of "2" under the eyes functional capacity factor, indicating he required corrective lenses. The examining physician determined he was medically qualified for separation. 15. He was honorably discharged from the Regular Army effective 7 January 1976. He completed 7 years, 3 months, and 8 days of total active service. His DD Form 214 does not show award of the Purple Heart. 16. The VA Rating Decision, dated 15 April 1976, shows he claimed service connection for an unspecified mental disorder, residuals from shell fragment wounds to his back and both legs, kidney damage, gunshot wound to his left leg, arthritis, and malaria. a. His medical records revealed a history of treatment for malaria with no residuals or recurrence. b. His service medical records were entirely void of any reference to the other claimed conditions. c. There was no indication he was ever issued a Purple Heart for wounds sustained during combat. d. There was no medical evidence of record to indicate the existence of psychosis following his discharge from active duty, although the current hospital summary referred to depressive neurosis and immature personality which the examiner stated was due to a relationship conflict with his girlfriend and her rejection of him. 17. The Consultation Sheet, dated 5 May 1976, states the applicant requested a mental hygiene evaluation for fitness for return to military service relating to his combat duty in Vietnam. The evaluating psychiatrist reported the applicant was in the Army from 30 September 1968 to 7 January 1976. He attained the rank of staff sergeant/E-6. He had no service-connected disabilities. He never saw a psychiatrist in the service. The main reason for the referral was that he went to the mental hygiene clinic while he was in the service and there was some question as to whether he was suffering from anxiety or combat problems. He went to the mental hygiene clinic in the service for counselling because he was having marital problems. The applicant stated he was wounded in combat and he has a recurrent kidney infection, but he was not taking any medication at the time. He had no other physical illnesses. The evaluating psychiatrist determined the applicant was without mental disorder. There was no psychiatric contraindication to his reenlistment in the U.S. Army. 18. The VA Hospital Summary, dated 11 May 1976, shows he was admitted to the VA Hospital on 11 March 1976 because of a history of depression with a suicidal attempt. His diagnoses consisted of depressive neurosis in an immature personality, adult adjustment reaction, and a suicidal attempt. a. The examiner noted the applicant apparently had a lot of problems adjusting to civilian life after his discharge from the Regular Army in January 1976. He also had a history of conflict in his relationship with his girlfriend. His physical examination during his hospitalization was found to be within normal limits. He complained of headaches and several other somatic complaints. His laboratory work was within normal limits; his skull x-ray did not show any pathology; his chest x-ray was normal. He was discharged from the VA Hospital on 16 April 1976. b. The examiner further noted the applicant was attacked by two men in the hospital parking lot at night and he was hit in his right lumbar area. He sustained a soft tissue injury and a minimal kidney contusion. He was seen by the urology physician because of mild hematuria. He was under observation and his physical condition was improving when he decided to leave the hospital against medical advice. He was considered to be competent and employable. 19. Following a brief break in service, he enlisted in the U.S. Army Reserve for a period of 6 years on 12 May 1976 under the Delayed Enlistment Program. He was honorably discharged from the U.S. Army Reserve Control Group (Delayed Entry) on 17 May 1976 for immediate enlistment in the Regular Army. 20. He enlisted in the Regular Army on 18 May 1976 for an active duty term of 3 years. 21. The VA Request for Physical Examination, dated 10 June 1976, shows a complete general medical examination was requested with special attention to the following disabilities: * psychiatric disorder * shrapnel wounds – legs and back * gunshot wound – left leg * kidney disorder * arthritis * malaria 22. On 28 June 1976, he extended his 3-year enlistment for a period of 5 months to complete an overseas tour of duty. 23. His DA Form 2-1 shows he served in Germany again from on or about 16 July 1976 through 14 March 1979. 24. The Consultation Sheet from the 97th General Hospital Urology Clinic, Frankfurt, Germany, dated 22 November 1976, states the applicant complained he was wounded in Vietnam in 1970 and sustained damage to his kidneys and bladder. He has had recurrent urinary tract infections since that time (old records are not available). He was told he had strictures in the "bladder." The examining physician rendered an impression (initial opinion) of urethral stricture (narrowing of the urethra caused by injury, instrumentation, infection, and certain non-infectious forms of urethritis). 25. On 8 December 1976 in response to his claim for disability compensation, the VA determined his condition of malaria was service connected, but less than 10-percent disabling and was not compensable. The VA further determined his nervous condition was not incurred in nor aggravated by his military service. The VA noted his service medical records and other evidence did not show a complaint of or treatment for shell fragment wounds, gunshot wound to his left leg, kidney damage, or arthritis. His personality disorder was a constitutional or developmental abnormality and not a disability under the law. 26. The Consultation Sheet from the 97th General Hospital Urology Clinic, dated 23 August 1977, states the applicant complained he sustained a gunshot injury to his bladder in Vietnam and has had recurrent urinary tract infections and hematuria since that time. The examining physician rendered an impression (initial opinion) of a history of urethral stricture and urinary tract infections. 27. U.S. Army Regional Personnel Center Frankfurt Orders 59-24, dated 28 February 1978, reassigned him from Headquarters and Headquarters Detachment, 709th MP Battalion, to the U.S. Army Military Community Activity Frankfurt effective 3 March 1978. 28. U.S. Army Regional Personnel Center Frankfurt Orders 180-42, dated 29 June 1978, reassigned him to Detachment F, 42d MP Group, effective 6 July 1978. 29. On 17 July 1978, he submitted a DA Form 4187 requesting voidance of his enlistment extension covering the period 18 July 1979 to 17 October 1979. He stated he had to extend his enlistment to complete a 39-month foreign tour in U.S. Army Europe and the requirement was no longer in effect. In a 1st indorsement to his request, dated 11 August 1978, his battalion commander recommended approval as an exception to policy. 30. The Clinical Record Cover Sheet from the 97th General Hospital, dated 18 November 1978, noted he sustained an accidental head injury while playing basketball in the gymnasium on 17 November 1978. He was diagnosed as having a contusion (bruise) by the examining physician. 31. The Consultation Sheet from the 97th General Hospital Neurology Clinic, dated 20 November 1978, states the applicant complained of headache and numbness. He reported he sustained a head injury from a fall over the weekend. The examining physician noted no neurologic deficit and released him to return to duty. 32. The Operation Report from the U.S. Army General Hospital Frankfurt (97th General Hospital), dated 7 December 1978, shows he underwent a meatotomy (surgical procedure to alleviate urethral stricture) and urethral dilation on 6 December 1978. 33. The Narrative Summary from WRAMC, undated, states the applicant was admitted on 22 January 1979 and underwent a series of urethral surgical procedures between his initial admission and 19 July 1979. The examining physician noted the applicant had an excellent prognosis regarding his urethral stricture; however, the condition would require annual urological evaluation to insure dilation was not required. The examining physician further noted the medical board opined the applicant was fit for duty and referral to a physical evaluation board (PEB) was not required. The applicant would be assigned a permanent physical profile rating of "2" for his urethral stricture. 34. The Physical Profile Record, dated 20 February 1979, shows he was assigned a temporary physical profile rating of "3" under the physical capacity/ stamina factor for recurrent urethral stricture. The examining physician determined he was medically qualified for duty with limitations. He could not perform physical training, stand for over 20 minutes, or lift over 15 pounds. 35. The Narrative Summary from the U.S. Army General Hospital Frankfurt (97th General Hospital), dated 13 March 1979, states the applicant was admitted administratively for air evacuation to WRAMC for further treatment and evaluation of his recurrent urethral stricture, complicated by urethral trichomonoiasis (very common sexually transmitted disease). 36. The Clinical Record Cover Sheet, dated 21 March 1979, shows he was hospitalized for 4 days and subsequently placed on convalescent leave for 5 days from 15 to 20 March 1979 for recurrent urethral stricture and urethral trichomonoiasis. He was transferred to WRAMC. 37. The Standard Form 502, dated 12 March 1979, listed the following history of his illness: This 29 year old male was injured in 1970 and has had problems with recurrent urethral strictures since that time. Initially he was treated with frequent urethral dilations. The last 9 years have been complicated with urinary tract infections about two times per year. His main complaints have included low back pain, perineal pain, bilateral scrotal pain, severe urethral stricture (painful urination), and terminal hematuria, along with decrease in size and force of his urinary stream. He has been followed in the Urology Clinic in Frankfurt since late 1976, being treated by [Colonel L. and Lieutenant Colonel P.], until I took over his case in 1978. In December 1978, he underwent urethral dilation under anesthesia. His symptoms were not relieved and the stricture in the bulbous urethral persisted. The patient underwent cystoscopy, transurethral resection of the urethral stricture and internal urethrotomy on 23 January 1979. 38. On 15 March 1979, he was medically evacuated from Germany to WRAMC and transferred to a medical holding company. 39. Headquarters, 97th General Hospital, Orders 53-1, dated 19 March 1979, directed his permanent change of station from the 97th General Hospital Medical Holding Company in Germany to the WRAMC Medical Holding Company with a reporting date of 23 March 1979. 40. His Report of Medical History in connection with his expiration term of service medical examination, dated 4 August 1979, shows he stated, "I am in reasonable health." He indicated he underwent surgery in 1970 for multiple shrapnel and gunshot wounds; he underwent surgeries in 1978-1979 for urethral dilation; he underwent knee surgery in 1966; and he was currently a patient at WRAMC. The examining physician noted the applicant's significant findings at that time consisted of numerous well-healed shrapnel wounds and persistent hematuria with a 2-degree urethral stricture. 41. His Report of Medical Examination in connection with his expiration term of service, dated 4 August 1979, noted a history of recurrent hematuria, dysuria with a 2-degree urethral stricture, and shrapnel scars. He was assigned a permanent physical profile rating of "2" under the physical capacity or stamina functional capacity factor and a temporary physical profile rating of "3" under the lower extremities functional capacity factor. The examining physician determined he was medically qualified for retention and/or discharge. 42. He completed a Statement of Medical Condition, dated 4 August 1979, wherein he indicated he underwent a separation medical examination more than 3 working days prior to his departure from place of separation. He further indicated to the best of his knowledge since his last separation examination, "There has been no change in my medical condition." 43. Headquarters, WRAMC, Orders 154-3, dated 7 August 1979, discharged him from the Regular Army effective 9 August 1979. 44. On 9 August 1979, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-17 (Separation of Enlisted Members of Medical Holding Detachments/Companies). He acknowledged he understood the consequences involved with his request. The WRAMC Medical Holding Company Commander approved his request the same date. 45. A memorandum from the Chief, Transfer Point, WRAMC, dated 9 August 1979, subject: Reason for Separation, states the reason for the applicant's separation from active duty on 9 August 1979 was that his short length of time remaining on active duty precluded reassignment. He was fully qualified for reenlistment; however, he was ineligible for subsequent enlistment until 93 days elapsed since the date of his last separation. 46. His DD Form 214 shows he was honorably discharged on 9 August 1979 under the provisions of Army Regulation 635-200, paragraph 5-17. He completed 10 years and 6 months of total creditable active service. He was assigned a separation program designation (SPD) code of "MBM" and a reentry eligibility (RE) code of "1A." His authorized awards include two Purple Hearts. 47. His records are void of orders awarding him the Purple Heart. 48. A review of the Awards and Decorations Computer-Assisted Retrieval System (Army Regulation 635-200), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the U.S. Army Human Resources Command Military Awards Branch, failed to reveal any orders awarding him the Purple Heart. 49. His records are void of enlisted evaluation reports documenting his duty performance, physical fitness, and military bearing. 50. His records are void of any evidence indicating he requested or was recommended for processing through the Physical Disability Evaluation System. 51. On 25 September 1979, he applied for service-connected VA compensation or pension for wounds to his bladder and lower legs, arthritis in his legs, malaria, hematuria, and benign stomach tumors. He specified he was treated: a. in Cam Ranh Bay, Vietnam, and at the U.S. Army Hospital, Fort Bliss, TX, in September 1970 for wounds to his bladder and lower legs; b. in Cam Ranh Bay, Vietnam, and at WRAMC in September 1970 through July 1979 for arthritis in his legs and malaria; and c. at various hospitals and WRAMC in September 1970 through July 1979 for hematuria and benign stomach tumors. 52. The Consultation Sheet from the 97th General Hospital Physical Examination Section, dated 16 January 1981, states the applicant requested a medical examination to support his disability pension claim for malaria and gastrointestinal problems. The examining physician reported the following impressions and stated the applicant could not be evaluated without old medical records: * history of malaria with recurrences since 1970 * history of recurrent gross hematuria, etiology undetermined * history of recent urinary tract infection, treated with an antibiotic * history of gunshot/shrapnel wounds involving back, legs, lung, bladder 53. His VA Rating Decision, dated 15 September 1981, shows he received a disability rating of 20 percent for gunshot wounds, bladder with recurrent urethral stricture, and urinary tract infections. 54. His VA Statement in Support of Claim, dated 26 September 1994, states he was rated 20-percent disabled for an injury of the bladder based on treatment records. He requested reevaluation and an increase in his disability rating. He further requested establishment of post-traumatic stress disorder (PTSD) as service connected and stated he was admitted to the PTSD unit at the Phoenix VA Medical Center on 9 September 1994. 55. His VA Rating Decision, dated 23 June 1995, shows he sought compensation for PTSD. Service connection for PTSD was established. Although he did not have a confirmed diagnosis of PTSD, there was objective evidence of exposure to stressful incidents while he was serving on active duty as he was wounded in Vietnam and he was awarded the Purple Heart, Combat Infantryman Badge, and Silver Star. He received revised disability ratings of: * 30 percent for PTSD from 30 September 1994 * 20 percent for status post-gunshot wound, bladder, with recurrent urethral stricture and urinary tract infections * 0 percent for malaria * 0 percent for multiple well-healed shrapnel wounds, left knee, trunk, and pelvis * 0 percent for status post-removal of lipoma, right chest 56. His VA Rating Decision, dated 26 March 2009, shows his disability rating for PTSD was increased to 50 percent effective 30 October 2008. 57. His VA Rating Decision, dated 25 August 2009, shows he received a disability rating of 0 percent for migraine headaches effective 26 May 2009. His disability rating of 20 percent for bladder with recurrent urethral stricture and urinary tract infections status post-gunshot wound was continued. 58. A letter from the VA, dated 1 October 2009, announced its decision regarding his claim for service-connected compensation. The VA determined service connection was granted for migraine headaches with a rating of 0 percent effective 26 May 2009. The following conditions and ratings were unchanged: * status post-gunshot wound, bladder with recurrent urethral stricture and urinary tract infections, with an evaluation of 20 percent * malaria with an evaluation of 0 percent * multiple well-healed shrapnel wounds to left knee with an evaluation of 0 percent * status post-removal lipoma, left chest, with an evaluation of 0 percent * multiple well-healed shrapnel wounds to trunk with an evaluation of 0 percent * multiple well-healed shrapnel wounds to pelvis with an evaluation of 0 percent 59. In his original application to the Board, dated 29 January 2010, he stated he was a patient at WRAMC at the time of his discharge, undergoing surgery to correct chronic damage to his bladder and lower extremities as a result of injuries he sustained in Vietnam. He further stated he requested consideration by a medical evaluation board (MEB) at that time, but his request was denied. Given the nature of his medical problems and the length of his honorable service, he believed he should have been medically retired. Instead, he was "designated as medically unfit for reenlistment" and simply discharged at the expiration of his term of service. He also felt his PTSD was not considered by a proper medical board as PTSD was not a recognized diagnosis by the Department of the Army or the VA at the time of his discharge. 60. On 26 July 2011, the ABCMR denied the applicant's request for correction of his records to show he was medically retired in lieu of voluntarily discharged in Docket Number AR20110000723. The Board determined no medical evidence was presented by the applicant to demonstrate an injustice in the medical treatment he received while he was in an active duty status or any evidence showing he was denied due process. 61. His VA Rating Decision, dated 31 July 2013, shows the VA reviewed his claim for benefits. a. A review of the VA examination indicated he had two TBIs during his service: one in Vietnam due to a mortar explosion and one in 1975 when he fell off a horse. His current symptomatology was less likely than not caused by the two TBIs he sustained in the military. His current complaint of headaches started in the 1980s, well after either TBI event. His neuropsychological testing in 2010 and 2012 showed essentially normal cognitive functioning. While he appeared to have suffered two significant TBIs during his military service, he appeared to have recovered well from both and went on to a productive work career in relatively cognitively demanding jobs without any evidence that his TBIs created any lasting disability. b. The VA made the following decisions: * service connection for PTSD was granted with an evaluation of 30 percent effective 30 September 1994 * service connection for PTSD was granted with an evaluation of 50 percent effective 30 October 2008 * service connection for status post-gunshot wound, bladder with recurrent urethral stricture and urinary tract infections, was continued with an evaluation of 20 percent effective 10 August 1979 * service connection for status post-gunshot wound, left gastrocnemius muscle, was granted with an evaluation of 10 percent effective 14 June 2012 * service connection for status post-shrapnel wound of left thigh, leg, and ankle was granted with an evaluation of 10 percent effective 14 June 2012 * service connection for status post-shrapnel wound of right thigh, leg, and ankle was granted with an evaluation of 10 percent effective 14 June 2012 * service connection for traumatic nerve injury, left lower extremity, was granted with an evaluation of 10 percent effective 14 June 2012 * service connection for traumatic nerve injury, right lower extremity, was granted with an evaluation of 10 percent effective 14 June 2012 * service connection for malaria was granted with an evaluation of 0 percent effective 8 January 1976 * service connection for status post-removal of lipoma, right chest, was granted with an evaluation of 0 percent effective 10 August 1979 * service connection for multiple well-healed shrapnel wounds to trunk was granted with an evaluation of 0 percent effective 10 August 1979 * service connection for multiple well-healed shrapnel wounds to left knee was granted with an evaluation of 0 percent from 10 August 1979 to 14 June 2012 * service connection for residual scars from shrapnel wounds, left lower extremity (previously diagnosed as multiple well-healed shrapnel wounds to left knee), was granted with an evaluation of 0 percent effective 14 June 2012 * service connection for multiple well-healed shrapnel wounds to pelvis was granted with an evaluation of 0 percent effective 10 August 1979 * service connection for migraine headaches was granted with an evaluation of 0 percent effective 26 May 2009 * service connection for traumatic brain injury was denied * service connection for peripheral neuropathy of the right upper extremity was denied * service connection for peripheral neuropathy of the left upper extremity was denied 62. In U.S. District Court for the District of Columbia, Memorandum Opinion Order in Civil Action Number 14-ev-0094 (J____), signed 31 July 2015, wherein the plaintiff sought amendment of his separation status from voluntary to disability based on previously undiagnosed PTSD, the U.S. District Court ordered the ABCMR to engage in discovery regarding exhaustion of administrative remedies. 63. The applicant, through counsel, provided a letter from B____, dated 9 May 2017, wherein he states he has known the applicant since 1977 when they met in Hanau, Germany. He recalled him having multiple surgeries to fix his problems (unspecified). He was often drunk and he complained of nightmares that would disturb him so he could not concentrate on his duties. The applicant returned to the United States sometime in 1979 and they lost contact. In 1980 while the applicant was working for Pan American Airlines, he contacted him and told him he had been in an Army hospital in Washington, DC, and he was freed from the Army after many operations. The applicant told him his first marriage ended because of his drinking problem. The applicant subsequently married a German woman, but they later divorced. The applicant was sent to New Orleans in 1981 or 1982 to investigate an airplane crash. The applicant was sent to Lockerbie, England, in 1988 to investigate the Pan American Airlines bombing and he was very angry and depressed when he returned to Germany. He would not talk to anyone and he drank a lot. His German wife told him that the applicant was difficult to live with and would sometimes experience things (unspecified) he did in the Army. He and the applicant have maintained contact over the years. When they talk, he can hear the applicant's sadness and that he was still drinking a lot. The applicant told him he was having trouble with the Government relating to his health and his problems with nightmares. 64. The Army Review Boards Agency Medical Advisor/Psychologist rendered an advisory opinion on 23 January 2018 wherein he stated: a. The applicant completed a Report of Medical History on 4 August 1979 prior to his separation physical. He described his health as follows: "I am in reasonable health." Further, he specifically denied epilepsy or fits, denied frequent trouble sleeping (highly unusual in a person with PTSD or serious mental illness), denied depression or excessive worry (also unusual in a person with active PTSD), and denied loss of memory or amnesia. This self-report, in regard to psychological issues, was the same as an earlier Report of Medical History obtained on 17 October 1975. b. His separation medical examination showed the physician rated him as free of psychiatric problems or neurological problems, though noting the previously diagnosed neurotic depression/immature personality would have been in order. The doctor noted he had a temporary physical profile rating of "213111," indicating a rating of "1" under the psychiatric functional capacity factor, and noted "Examinee is qualified for retention/discharge." His temporary physical profile rating of "3" under the physical capacity or stamina functional capacity factor had to do with a urethral stricture for which he received an operation earlier in the year. He had a disability claim rejected on 1 September 1976 while serving on activity duty; the claim was submitted on 15 April 1976. c. In regard to his nervous condition – a personality disorder (immature personality) – "your personality disorder is a constitutional or developmental abnormality, and not a disability under the law." The applicant apparently received the personality disorder diagnosis after he was admitted to the Phoenix VA Hospital following an overdose of Elavil on 11 March 1976. He obtained diagnoses of depressive neurosis in an immature personality, adult adjustment reaction, and suicidal attempt in his hospital discharge summary on 11 May 1976. The psychiatrist attributed the suicidal attempt to his stormy relationship with his girlfriend who wished to end the relationship. d. A pertinent personal letter, dated 9 August 1979, subject: Reason for Separation, gave the reason for the applicant's separation as "Short length of time remaining on active duty precludes reassignment" and, in regard to reenlistment eligibility reads, "Fully qualified for reenlistment; however, ineligible to apply for reenlistment until 93 days have elapsed since date of last separation." In 1994, a psychiatrist wrote a discharge note for a hospitalization after the applicant was admitted to a psychiatric hospital for depression. According the physician, the applicant described "occasional thoughts of suicide but these come in flashes and he denies serious thought or plans. There is no history of any previous attempt," which contradicts the VA note of 1976 for a hospitalization following a suicide attempt. The applicant's discharge diagnoses were "Adjustment Disorder with Depressed Mood, Rule out, PTSD, delayed onset" and no diagnosis of an Axis II disorder, though it was impossible to tell if the applicant answered questions about past diagnoses honestly or whether the doctor forgot to ask. The applicant later obtained a PTSD diagnosis with a disability rating from the VA. The diagnosis came to him approximately 25 years after his war injuries and 15 years after PTSD had official recognition in the American Psychiatric Association (APA) diagnostic manual. e. A limited review of VA records through the Joint Legacy Viewer revealed a VA service-connected disability rating of 80 percent. His psychiatric or psychiatrically relevant diagnoses include PTSD, morbid obesity, and sleep apnea. The VA showed 5 psychiatric hospitalizations, 572 outpatient encounters, and 1,696 documents. The first note from the VA appears in February 1996. f. The applicant's available records did not reasonably support PTSD or other boardable behavioral health condition(s) existed at the time of his military service. He was not complaining of psychiatric symptoms at the time of discharge; he was denying them. He offered character references written more than 40 years after the event from associates. His actual assessments from the time show him to have been functioning well enough at work to be entitled to reenlist. g. The applicant's condition(s) did not fail medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), warranting his separation through medical channels. His reenlistment eligibility code was "1A" and there was insufficient evidence of a disabling mental health condition, based on abundant records from that time, which would have made a referral for an MEB for psychiatric reasons appropriate. For example, two of the most obvious symptoms that would be consistent with a PTSD presentation – disturbed sleep and anxiety – were denied by the applicant. Also, the policy of liberal consideration cited by the applicant is applicable for mitigation of misconduct cases, not medical retirement. h. The applicant met medical retention standards in accordance with Army Regulation 40-501, chapter 3, and following the provisions set forth in Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) that were applicable to his era of service. i. The applicant's medical conditions were duly considered during medical separation processing. j. A review of the available documentation found insufficient evidence of a medical disability or condition which would support a change to the reason for his discharge in this case. 65. On 11 March 2018, the applicant's counsel responded to the medical advisory opinion and submitted Exhibits J and K for consideration. a. Counsel states submission of new Army personnel records corroborate the applicant's witness that he was unfit from PTSD behavior and drinking problems in early 1978. The applicant states he was reassigned away from his Military Police (MP) military occupational specialty (MOS) and unit in February 1978 and assigned to an Adjutant General Personnel and Administration Battalion at Corps level; duty as a United Service Organizations liaison at the Frankfurt airport, a typical civilian job in "Military Morale Recreation," indicating limited capacity, no longer fit for traditional Soldier duties. He never returned to MP or military duties. The records corroborate this. (1) In the applicant's supplemental statement, he refers to a German friend at the time who submitted a supporting statement for the present appeal. The applicant later stated he had unresolved chronic pain and repeated surgeries that worsened his PTSD. His mental problems were causing trouble at work. His commander said he needed mental help and he was taken "off the streets" – no longer a detective. Under the burden of these mental health symptoms and chronic pain, his judgment and impulse control were poor. He suspected the Army would subject him to repeated unnecessary surgeries, while MOS retraining was would be disaster. He requested early release in August 1979. He states his DD Form 214 for early release was an obvious error; his discharge orders, dated 7 August 1979, state "AR 635-200 [Army Regulation 635-200]" and SPD code "MBM" for voluntary discharges is presumed due to permanent physical profile rating of "3." He chose early release as he was not physically qualified in his current MOS. (2) Orders, dated 28 February 1978, show the applicant was reassigned from the 709th MP Battalion to the U.S. Army Military Community Activity Frankfurt on 3 March 1978, not incident to hospitalization. However, he was examined at the 97th General Hospital 11 months later. In November 1978 after laboratory results showed a urinary infection, a consultation was issued. He was seen at the 97th General Hospital on 5 December 1978. In January 1979 after his urinary stricture was diagnosed, the 97th General Hospital issued a limiting physical profile rating on 20 February 1979. He was medically evacuated to WRAMC in March 1979. (3) In February 1978, the applicant was upset by his involuntary transfer from MP duties, expelled from his MOS and exiled to an Adjutant General unit as a USO Liaison. This was in insult and career-stigmatizing – he would never get promoted. This is consistent with his 1976 reenlistment where he denied psychiatric VA Hospital admission, suicide attempts, and downplayed the recruiter investigation of his 1975 mental hygiene counseling in Germany as mere "marital discord." The applicant tried to bypass the 709th MP Battalion Commander's edict and requested return to a different MP unit. He never left the Personnel and Administration Battalion until March 1979 when he left for WRAMC. He never resumed MP duties nor any typical soldier duties. For over a year – from 28 February 1978 before his urinary problems required treatment at WRAMC in March 1979 – the applicant had been "taken off the streets as an investigator" by his commander who deemed him so unfit to work in any military capacity, except in a civilian role as a USO liaison. (4) The advisory opinion analysis of this Vietnam-era PTSD case is distorted with absurd results. After finding the applicant ineligible under the 2017 DOD Vietnam- era discharge upgrade/correction policy, it does not view any of the evidence under "liberal consideration." The opinion all flows downhill from there. The applicant argued in his supplemental statement that the 2017 policy is not restricted to only misconduct during Vietnam era to upgrade service characterization, but any correction of discharge records, nor does it specifically exclude correction to medical reasons; to "excuse or mitigate conduct" implies excusing otherwise voluntary or early release due to unrecognized PTSD. Whether the 2017 policy does or does not legally apply, it is a gross injustice to apply "liberal consideration" of PTSD evidence to upgrades from Vietnam era discharges, and not to PTSD evidence from another Soldier's Vietnam discharge, simply because the applicant is requesting correcting his voluntary release to reflect disability reasons. The advisory opinion is not bound by the statutory mandate that the ABCMR independently consider both legal error and "injustice." As the 2017 DOD memorandum warns against, the advisory opinion improperly argues only a very narrow legal view. As noted in the 2017 DOD memorandum, "This guidance is not intended to interfere with or impede the Boards' statutory independence." The advisory opinion, however, urges this Board that the 2017 DOD clarifying guidance must interfere with and impede its statutory independence and exclude considerations of injustice. Applying the advisory opinion's narrow position in this case produces inequitable results. The advisory opinion basically implies the applicant's disability claim fails, lacking Army medical treatment and performance records showing a PTSD diagnosis and degree of impairment, of the same exacting standard and quality for his 1979 MOS- disqualifying urinary stricture and bladder infections. Because the advisory opinion has tunnel vision in ignoring this injustice, it discredits all other alternative evidence the applicant presents, and standards the DOD found necessary in 2017 because "invisible wounds however, are some of the most difficult cases [the BCMRs] review and there are frequently limited records to consider, often through no fault of the veteran..... Standards for review should rightly consider the unique nature of these cases and afford a reasonable opportunity for relief...." The DOD clarifying guidance and prior 2014 memorandum both recognize it is difficult to provide adequate documentation of the then-unrecognized mental condition, and even later from associated stigma and reprisals. The 2017 liberal consideration policy allows that the "veteran's testimony alone may establish existence of the condition" (such as the applicant's transfer to USO liaison duties in 1978 for behavioral problems, with corroborating transfer records, and other sources he has provided – lay statements of contemporaneous changes in behavior, substance abuse to self-medicate, anxiety and depression without any identifiable cause, relationship-marital issues, parental loss of child visitation rights, and erratic part-time post-discharge work history). (5) The advisory opinion points to the absence of official reporting PTSD symptoms at the time of the applicant's expiration term of service and for years post- discharge. This ignores current Army policy – Soldiers are trained to fall back on their training and may have "less direct responses" to PTSD. The majority do not seek PTSD treatment due to career stigma (do not trust mental health professionals and may be diagnosed with personality disorders, or avoiding interfering in some way with their careers until symptoms become overwhelming). As a result, there may be a lack of previous documentation of the condition at times when individuals first get evaluated. This was case for the applicant in his 1976 civilian hiatus when anxiety and depression was pejoratively branded a personality disorder at the VA. So of course he downplayed symptoms back in the Army, and for years after 1979. After PTSD was listed in Diagnostic and Statistical Manual of Mental Disorders (DSM), third edition, it remained controversial. He was personally troubled with the PTSD "concept" as his Army training expected him to be, and it turned his decorated combat service and his Purple Heart into something ambiguous, causing mental illness. The perception of PTSD is still highly stigmatizing in the Army, to a lesser degree in society, but is still a bane to older veterans. He carried this stigma, trying to avoid interfering with civilian employment until symptoms were overwhelming and his professional and personal life were in shambles. Even with the initial VA diagnosis in the early 1990s, he was soldierly defiant, ambivalent with diagnosis and treatment. b. For the above reasons, the ABCMR should grant relief as set forth in section I of the applicant's supplemental statement by granting a disability retirement for PTSD, or refer his case for disability processing to the Army Physical Disability Agency. BOARD DISCUSSION: 1. After considering all the evidence, including the advisory opinion from the Army Review Boards Agency medical office, the Board determined that the applicant has failed to demonstrate by a preponderance of evidence that his overall physical condition at the time of his discharge warranted a finding that he was unfit for military service. Consequently, the Board must deny the relief that the applicant has requested. The Board further finds no error in the manner in which the applicant’s case was handled at the time of his discharge, or subsequent to his discharge. However, the Board believes there is some ambiguity within the applicant’s records relative to his medical status at the time of discharge. As a matter of equity, the Board therefore will grant partial relief. Specifically, the Board has determined that the applicant’s records should be referred to the Department of the Army Office of The Surgeon General (OTSG) for review to determine if the applicant had any conditions that did not meet medical retention standards. If OTSG identifies conditions that didn’t meet retention standards, the applicant should be afforded processing through the Disability Evaluation System to determine if any conditions not meeting medical retention standards were unfitting at the time. If any unfitting conditions are identified, they should be rated in accordance with the governing policies and the appropriate disposition should be implemented (discharge with severance pay or retirement due to disability). 2. With regard to the matter of whether Combat Related Special Compensation (CRSC) is appropriate, this issue is not ripe for a determination. If the applicant is retired due to disability, he may apply for CRSC in accordance with that program’s procedures. However, if he is retroactively retired for disability, these proceedings should serve as the authority to consider a CRSC application to have been submitted in a timely manner. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant partial amendment of the decision of the ABCMR set forth in Docket Number AR20110000723, dated 26 July 2011. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to the Department of the Army Office of The Surgeon General (OTSG) for review to determine if he had any conditions that did not meet medical retention standards. a. If OTSG identifies conditions that did not meet retention standards, the applicant should be afforded processing through the Disability Evaluation System to determine if any conditions not meeting medical retention standards were unfitting at the time. b. If any unfitting conditions are identified, they should be rated in accordance with the governing policies and the appropriate disposition should be implemented (discharge with severance pay or retirement due to disability). 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 any relief in excess of that described above. 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. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). a. Chapter 2 describes the lower extremities as the pelvic region, thigh, lower leg, ankle, and/or foot. b. Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service. Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB. c. Chapter 7 prescribes a system for classifying individuals according to functional abilities. The functions have been considered under six factors designated "P-U-L-H-E- S." Four numerical designations are used to reflect different levels of functional capacity. The basic purpose of the physical profile serial is to provide an index to overall functional capacity. Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, will be evaluated in determining the numerical designation "1," "2," "3," or "4." (1) An individual having a numerical designation of "1" under all factors is considered to possess a high level of medical fitness. (2) A physical profile designator of "2" under any or all factors indicates an individual possesses some medical condition or physical defect that may require some activity limitations. (3) A profile serial containing one or more numerical designators of "3" signifies the individual has one or more medical conditions or physical defects that may require significant limitations. The individual should receive assignments commensurate with his or her physical capability for military duty. (4) A profile serial containing one or more numerical designators of "4" indicates the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. 2. Army Regulation 635-40 establishes the Physical 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 or her office, grade, rank, or rating. a. The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. b. The medical treatment facility commander with primary care responsibility evaluates those referred to him or her and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to an MEB. Those members who do not meet medical retention standards are referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. 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. c. Disability compensation is not an entitlement acquired by reason of a 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 service. 3. Title 10, U.S. Code, chapter 61, provides for the disability retirement or separation of a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. 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. 5. 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. 6. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from impairment that disqualifies him or her from further military service. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. Accordingly, it is not unusual for the two agencies of the government, operating under different policies, to arrive at a different disability rating based on the same impairment. Furthermore, 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. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. 7. CRSC, as established by Title 10, U.S. Code, section 1413a, as amended, states eligible members are those retirees who have 20 years of service for retired pay computation – or 20 years of service creditable for Reserve retired pay at age 60 – and who have disabilities that are the direct result of armed conflict, specially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war. Such disabilities must be compensated by the VA and rated at least 10-percent disabling. CRSC benefits are equal to the amount of VA disability compensation offset from retired pay based on those disabilities determined to be combat related. Title 31, U.S. Code, section 3702(b), states CRSC is subject to a 6-year statute of limitations. CRSC applicants are entitled to submit up to three appeals before a final determination is granted. a. To qualify for CRSC an individual must: * be entitled to and/or receiving military retired pay * be rated at least 10-percent disabled by the VA * waive VA pay from retired pay * file a CRSC application b. Disabilities that may be considered combat related include injuries incurred as a direct result of: * armed conflict * hazardous duty * an instrumentality of war * simulated war c. Disability retirees with less than 20 years of service will be automatically limited to a retroactive date of 1 January 2008 as required by legislation passed by Congress effective 2008. d. All retroactive pay is limited to 6 years from the date the VA awarded compensation for each disability. 8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-17, in effect at the time, stated hospital commanders in the grade of colonel/O-6 or higher (general court-martial convening authority is not required) were authorized to order separation for the convenience of the government of those enlisted personnel assigned to medical holding detachments or companies who had less than 3 months to serve to their expiration terms of service following completion of hospitalization, and who signed a statement indicating they were willing to accept separation under this paragraph. 9. Army Regulation 635-5-1 (SPD Codes), in effect at the time, prescribed the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. SPD code "MBM" was assigned to individuals whose short length of time remaining on active duty precluded reassignment. The regulatory authority for this code was shown as Army Regulation 635-200, paragraph 5-13 or 5-17. 10. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment/reenlistment and includes a list of Armed Forces RE codes. * RE-1 applies to persons completing an initial term of active service who are considered qualified to reenter the U.S. Army if all other criteria are met * RE-3 applies persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable * RE-4 applies to persons separated from their last period of service with a nonwaivable disqualification * RE-4R applies to persons who retired for length of service with 15 or more years of active Federal service * RE-1A, 1B, 1C, 2, 2B, 2C, and 4A applied to persons who separated prior to the effective date of this regulation who were qualified for enlistment provided the reason and authority did not preclude enlistment or require a waiver – such applicants could not enlist until 93 days after separation, if otherwise qualified * RE-2A, 3A, 3B, 3C, 3D, 3E, 3S, and 3V applied to persons separated prior to the effective date of this regulation who did not meet reentry criteria at the time of separation 11. The DSM, chapter 7, addresses trauma and stress or related disorders. The DSM is published by the APA and provides standard criteria and common language for classification of mental disorders. a. In 1980, the APA added PTSD to the third edition of its DSM nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." b. The fifth edition of the DSM was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms, the seventh criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co- occurring medical condition. 12. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharges. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldiers' misconduct which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 13. On 3 September 2014 in view of the foregoing information, 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 applicants' service. 14. 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. 15. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180000006 21 1