BOARD DATE: 26 June 2020 DOCKET NUMBER: AR20180000458 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a change in his narrative reason for separation from misconduct (drug abuse) to a medical separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214, for the period ending 21 March 2008 * Social Security Administration letter, dated 17 November 2017 * Department of Veterans Affairs (VA) letter, dated 20 November 2017 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he was discharged from the service after a three month hospital stay at William Beaumont Army Medical Center, Fort Bliss, TX, where he was diagnosed with schizoaffective disorder. He is currently receiving 100% (percent) disability and compensation from the VA, as well as, a supplemental security income (SSI) benefit from the Social Security Administration. 3. The applicant enlisted in the Regular Army on 25 July 2007. After basic training, he was assigned to Fort Bliss, TX for his advanced individual training in military occupational specialty (MOS) 14E (Patriot Fire Control Enhanced Operator/Maintainer). He did not complete training and was not awarded an MOS. 4. A DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant underwent a mental status evaluation by a licensed medical professional on 11 February 2008. The reason for the request was for a discharge for the good of service and other. He was determined to be fully alert and oriented. His affect and mood were flat and depressed, with confused thought in process and abnormal with hallucinations in thought content. a. It was noted he had the mental capacity to understand and participate in proceedings deemed appropriate by his command. He was mentally responsible and was diagnosed with schizoaffective disorder, marked sad mood. It was further noted by the medical professional that the applicant's problem would not responds to command efforts at rehabilitation nor to any treatment methods currently available in any military mental health facility. b. The medical professional stated: "The applicant suffers from schizoaffective disorder. This means that he hears voices and is sad. The combination is a powerfully disabling one and makes him undeployable. For this reason we recommend an expeditious separation from the U.S. Army - to protect the Soldier and the Service. While separation is pending the Soldier will be followed at Community Mental Health Services (CMHS)." 5. A DD Form 2624 (Specimen Custody Document - Drug Testing), shows the applicant was administered a drug test on 19 February 2008. In a subsequent memorandum, dated 29 February 2008, indicates the applicant had tested positive for marijuana. 6. The applicant's immediate commander initiated action on 17 March 2008 to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c, by reason - commission of a serious offense. He cited the reason as misconduct - abuse of illegal drugs as the result of testing positive on a urinalysis for marijuana on 19 February 2008. 7. The applicant acknowledge the proposed action and his rights on 17 March 2008. On 18 March 2008, he waived his right to counsel. He further noted he understood he could encounter prejudice in civilian life if a general discharge was issued, his discharge benefits, and education benefits. 8. The applicant's immediate commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense. He cited his testing positive on a urinalysis for marijuana on 19 February 2008. He further recommended an under honorable conditions (general) characterization of service discharge. 9. His intermediate commander recommended approval of the discharge with a characterization of under other than honorable on 18 March 2008. 10. The separation authority approved the request for the applicant to be separated under the provisions of Army Regulation 635-200, paragraph 14-12c (2), for a commission of a serious offence for use of illegal drugs on 19 March 2008. He ordered the applicant receive an under honorable conditions (general) characterization of service and that he not be transferred to the Individual Ready Reserve. 11. The applicant was discharged on 21 March 2008, under the provisions of Army Regulation 635-200, paragraph 14-12c (2), with an under honorable conditions (general) characterization of service. The DD Form 214 he was issued shows he was credited with the completion of 7 months and 27 days of net active service and he was not awarded a military occupational specialty. Additionally, it shows the following entries: * Item 26 (Separation Code): "JKK" * Item 27 (Reentry Code): "4" * Item 28 (Narrative Reason for Separation): "Misconduct (Drug Abuse)" 12. The applicant's record is void of any medical documentation, nor does he provide any, that shows he was hospitalized for three months during his active duty service. His record is also void of any documentation that shows he had a medical condition that deemed him medically unfit warranting his disposition through medical channels. 13. In connection with the processing of this case, an advisory opinion was obtained on 12 May 2020 from an ARBA Clinical Psychologist, who opined, in effect (see attachment): a. A review of the electronic VA medical records indicate the applicant is 100% service-connected for Psychosis. During his Compensation and Pension (C&P) exam, he was diagnosed with Schizoaffective Disorder. He reported a childhood history of abuse with acting out resulting in alternative schools, fighting, and marijuana use. He had been homeless “on and off” since discharge. During the evaluation, the provider outlined observed and significant psychotic symptoms. The provider was concerned and walked him to behavioral health, however he was ineligible at that time. He returned in 2014 requesting homeless services. Since 2015, he has attended medical management. He has sporadically attended other services. b. The review of the active duty electronic medical record (AHLTA) indicated he went to behavioral health in January 2008 reporting difficulty breathing and increased anger. The provider noted a history of oppositional-defiant behavior and "anti-social traits” with hospitalization a year prior. He reported “vague suicidal and violent tendencies … he may become violent towards anyone that pisses me off." He requested an anti-depressant noting it worked pre-enlistment, 2006 – 2007. The applicant reported using marijuana on leave and "occasionally gone through binge periods using over-the-counter cold medication to get high." The provider diagnosed Antisocial Personality Disorder. c. Based on a thorough review of available records, Mr. Bell more likely than not was experiencing psychotic symptoms while in-service. Given this, a referral to the Disability Evaluation System (DES) is recommended to determine if he met medical retention standards at the time of separation. 14. A copy of the advisory opinion was forwarded to the applicant on or about 3 June 2020, for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. 15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. 16. Based on the authority and reason for separation, he was properly assigned a separation program designator (SPD) code of "JKK" and a corresponding RE code of "4" in accordance with applicable regulations. 17. 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. 18. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. 19. The law allows the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, any disability rating action by the VA does not demonstrate an error or injustice on the Army's part. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service; only the Army can make that determination. The VA may award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability. 20. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance as issued by the Secretary of Defense and Under Secretary of Defense for Personnel and Readiness (see references). BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the in-service medical assessment and the reason for his separation. The Board considered the review and conclusions of the medical advising official and concurs with the recommendation. Based on a preponderance of evidence, the Board determined that the applicant should be afforded a review for consideration of medical separation or retirement. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. 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 referring his records to the Office of The Surgeon General for review: a. If a review by the Office of The Surgeon General determines the following action is warranted, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any diagnoses identified as having not met retention standards prior to his discharge. b. In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should be separated or retired for disability, these proceedings serve as the authority to issue him the appropriate disability separation or retirement orders retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay. 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 without benefit of the review 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. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40. a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board * receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, Human Resources Command c. The PDES assessment process involves two distinct stages: the MEB and the 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 are either 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 retirement payments and have access to all other benefits afforded to military retirees. d. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. 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 rated at least 30 percent. 4. Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated less than 30 percent. 5. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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. It provides that an MEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. 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 service. a. Paragraph 2-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. d. Paragraph 4-10 provides that MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on criteria in Army Regulation 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. e. Paragraph 4-12 provides that each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the disability evaluation system. An informal board must ensure that each case considered is complete and correct. All evidence in the case file must be closely examined and additional evidence obtained, if required. f. The regulation states that after the Soldier has been processed through the PDES and a PEB has made a determination that the Soldier is qualified for disability retirement but for the fact that his or her disability is determined not to be of a permanent nature and stable can be placed on the temporary disability retired list (TDRL). The TDRL is used in the nature of a "pending list." It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. 7. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 9. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. * RE-1 applies to Soldiers completing their terms of active service who are considered qualified for enlistment if all other criteria are met * RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable – they are ineligible unless a waiver is granted * RE-4 applies to Soldiers who separated from last period of service with a non- waiverable disqualification - they are ineligible for enlistment. 10. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. It identifies SPD code "JKK" as the appropriate code to assign enlisted Soldiers who are administratively discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, based on misconduct (drug abuse). 11. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers. The SPD/RE Cross Reference Table in effect at the time of the applicant's separation established the RE code of "4" as the proper RE code to assign to enlisted Soldiers separated with the SPD code of "JKK." 12. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 13. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. 14. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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) AR20180000458 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1