IN THE CASE OF: BOARD DATE: 10 August 2020 DOCKET NUMBER: AR20180003994 APPLICANT REQUESTS: reconsideration of his previous request for a medical discharge and as new request to have his date of entry shown as 6 September 1977. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 2 DD Forms 149 (Application for Correction of Military Record) 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 AC91-05908 on 20 July 1994. 2. The applicant states, in effect, he should have been medically discharged and his date of entry should reflect 6 September 1977. 3. The applicant enlisted in the U.S. Army Reserve on 6 September 1977; however, he enlisted in the Regular Army on 21 June 1978. 4. The applicant was counseled on several occasions pertaining to his performance. 5. On 25 September 1978, the applicant's commander recommended he be separated from the service under the provisions of the trainee discharge program (TDP). The commander stated the applicant had refused to obey orders, had a complete lack of response to counseling efforts, had exhibited bizarre behavior, and mental health professionals had determined he was mentally sound. The applicant was informed of his rights. 6. On 26 September 1978, the applicant signed a form stating that he did not desire to make statements in his own behalf or to submit a rebuttal, and that he did not desire to undergo a separation physical examination. 7. On 29 September 1978, an authorized official approved the applicant's separation under the TDP. He directed he be furnished an Honorable Discharge Certificate. 8. On 5 October 1978, the applicant was honorably discharged in accordance with the authorized official's decision. He completed 3 months and 15 days total active service. His DD Form 214 accurately shows his date of entry on active as 20 June 1978. 9. The applicant’s medical records are not available for the board’s review and the applicant does not provide evidence showing he had a condition requiring referral to the Army Disability Evaluation System (DES). 10. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the Department of Veterans Affair's (VA's) Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant is requesting Army medical discharge. A JLV search revealed the applicant was not service connected by the VA for any disabilities. However, records in JLV showed that after discharge, the applicant was first seen at a VA (Atlanta) in March 1988 for films for bilateral knees, chest and abdomen and an upper gastrointestinal series with negative results. In May 2015 (37 years after discharge) the applicant was first diagnosed with a mental health condition. At that time and for a period lasting about 2 years, the applicant had symptoms of psychosis and paranoid and/or grandiose delusions. He also had issues with alcohol and drug use in the past. He worked part time from 1980- 1993 in janitorial services or washing dishes. He left one job because he felt others were making open passes at him. He stated it has been hard to get work because he is asked for a note for mental health clearance. He also reported (21 July 2016 Neurology Consult) being given a voluntary experimental drug by the military that caused him to be unable to stay awake at his post and to be unable to control his actions. This led to him getting into an argument with a sergeant who reportedly hit him in the head with the butt of an M-16 which made him lose consciousness. Military counseling records showed that the applicant’s superiors detailed that he laughed inappropriately and disobeyed orders or responded in a bizarre fashion while in service. Counseling records were available, but there were no in service medical treatment records available for this review. The military records indicate the applicant was examined by mental health specialist(s) and it was reported that the applicant was not diagnosed with a mental health diagnosis. The mental health evaluation(s) were not included in the military records for this review. In 2015, psychiatry diagnosed the applicant with psychotic disorder (not otherwise specified), rule out schizophrenia. The applicant has had two exacerbations of his mental health condition separated by more than 35 years. The applicant reports he has never held a full-time job. His symptoms have been generally mild. When he first left the military, he stayed in the homes of different family members but other than that, he has never had an interpersonal relationship. He denies mental illness, refuses treatment for it, and focuses exclusively on medical concerns and this is frequently out of proportion to their clinical significance. He believes he should have been medically discharged for a heart attack and lung problem. He avoids psychiatry and traumatic brain injury appointments. In the reviewer’s opinion, the applicant’s mental health condition more likely than not, existed prior to service with him experiencing his first psychotic episode or exacerbation while in basic training. The condition did not meet procurement standards in accordance with Army Regulation 40- 501 (Standards of Medical Fitness), chapter 2, because it interfered with military duty performance. He had completed 3 months and 15 days of training. Based on review of the available medical evidence, there is insufficient evidence to support referring this case for discharge through medical channels. Again, there were no in service treatment records, physical profile records or VA service connected disabilities and therefore no other medical conditions to consider for medical discharge processing. 11. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided for the TDP. This program provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or failed to respond to formal counseling. 12. 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. 13. Army Regulation 635-5 (Personnel Separations: Separation Documents), in effect at the time, prescribed the separation documents that were furnished individuals who were retired, discharged, or released from active military service, including members of Reserve components on active duty for training or full-time training duty and U.S. Military Academy cadets. 14. 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. 15. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635-40. 16. 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. ? BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief is not warranted. The Board concurred with the ARBA Medical Advisor's conclusion that there is insufficient evidence to support referring this case through medical channels to determine if the applicant should have been separated due to disability. Based on a preponderance of evidence, the Board determined the separation the applicant received is not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AC91-05908, dated 20 July 1994. 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 635-200, in effect at the time, provided for TDP. This program provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or failed to respond to formal counseling. The regulation essentially required that the service member must have voluntarily enlisted; must be in basic, advanced individual, on-the-job, or service school training prior to award of a military occupational specialty; and must not have completed more than 179 days of active service on his or her current enlistment by the date of separation. The regulation provided that Soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service. 2. Army Regulation 635-5 (Personnel Separations: Separation Documents), in effect at the time, prescribed the separation documents that were furnished individuals who were retired, discharged, or released from active military service, including members of Reserve components on active duty for training or full-time training duty and U.S. Military Academy cadets. 3. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 5. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40 with the following caveats: a. USAR or Army National Guard (ARNG) Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation. b. Normally, Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 or discharged from the USAR per AR 135–175 (Separation of Officers) or Army Regulation 135–178 (Enlisted Administrative Separations). They will be transferred to the Retired Reserve only if eligible and if they apply for it. c. Reservists who do not meet medical retention standards may request continuance in an active USAR status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Reservists with nonduty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9–12. d. Paragraph 9-12 states Reserve component Soldiers with nonduty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation are eligible to request referral to a PEB for a determination of fitness. Because these are cases of Reserve component Soldiers with nonduty related medical conditions, MEBs are not required and cases are not sent through the PEBLOs (Physical Evaluation Board Liaison Officers) at the military treatment facilities. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the USARC Regional Support Command or the U.S. Army Human Resources Command Surgeon’s office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier not to meet medical retention standards. 6. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180003994 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1