ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 June 2019 DOCKET NUMBER: AR20180004628 APPLICANT REQUESTS: her narrative reason for separation be changed from “Misconduct Serious Offense” to “Medical Retirement." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Psychological Assessment Report, dated 25 May 2011 * Psychiatrist Statement from G. L. MD, dated 6 June 2011 * Post-Traumatic Stress Disorder (PTSD) evaluation by XXX, PhD, dated 6 June 2011 * Veterans Affairs Special Psychiatric Evaluation, dated 29 July 2011 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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, she would like to have the narrative reason for her discharge changed from misconduct to medical retirement. She states, in effect, her discharge was inequitable and unjust because it was based on one isolated incident in her 28 months of service with no other adverse action. She believes that there was prejudice towards her. It is her opinion that her discharge narrative should have been medically boarded and discharged based off the doctors' reports/statements. She had already been evaluated and screened for traumatic brain injury (TBI) and PTSD. She adds that her unit was being unfair and decided to put her out with an under other than honorable initially. She submitted documents to the Army Review Board and they upgraded her discharge to honorable on 15 February 2015, but didn’t not change her narrative reason. 3. The applicant provides medical documentation supporting her psychological diagnosis which includes: * Psychological Assessment Report, dated 25 May 2011 * Psychiatrist Statement from G L, MD, dated 6 June 2011 * Post-Traumatic Stress Disorder (PTSD) evaluation by XXX, PhD, dated 6 June 2011 * Veterans Affairs Special Psychiatric Evaluation, dated 29 July 2011 4. A review of the applicant’s record shows: a. Having had prior service in the Army National Guard and the Regular Army, the applicant enlisted in the Regular Army on 9 March 2005. She reenlisted on 2 December 2005 and on 18 February 2012. b. She served in Iraq from 5 February 2007 to 15 Aril 2008. c. On 9 June 2010, she accepted nonjudicial (NJP) for the intent to defraud, drafted and presented a check with insufficient funds and wrongfully altered her Military ID card. d. On 28 October 2010, she accepted NJP under Article 15 for the intent to deceive, signed an official document that stated she had not made a claim against her private insurer, which was false. Her punishment included reduction to E-4 e. The applicant's service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. However, the record contains (1) Orders Number 044-0012, issued by the U.S. Army Garrison, Schofield Barracks, HI on 13 February 2012, discharging the applicant from the Army, effective 17 February 2012. (2) DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows she was discharged on17 February 2012. Her DD Form 214 shows: * the authority for discharge as paragraph 14-12c, Chapter 14, Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) * the narrative reason for separation as misconduct (serious offense) * the characterization of service as under other than honorable conditions * the Separation Code as JKQ * the Reentry Code of 4 f. The applicant submitted an appeal with personal appearance request to the Army Discharge Review Board (ADRB). On 9 February 2015, the ADRB determined the applicant's separation was proper but the characterization was too harsh. The ADRB voted to change the applicant’s characterization from under other than honorable conditions discharge to an honorable discharge and reinstate her E-4 grade. The ADRB voted not to change the narrative reason for separation. Her DD Form 214 was voided and she was issued a new one reflecting her E-4 grade and honorable character of service. g. On 7 June 2018, the Army Review Boards Agency (ARBA) Clinical Psychologist was asked if the applicant’s alleged medical condition(s) warranted separation through medical channels and a medical retirement. This opinion is based on the information provided by the Board and records available in the DOD electronic medical record and the Joint Legacy Viewer (JLV). Based on a thorough review of available medical records, there is insufficient evidence to determine if the applicant met criteria for a boardable behavioral health condition during her time in service. There is a lack of information at her time of separation, to include any indication that a ratable condition existed. Furthermore, her record is void of the specific facts and circumstances concerning the events which led to her discharge from the Army. This observation does not negate the applicants diagnoses and treatment of PTSD and other behavioral health conditions from the VA; however, the applicants military records are incomplete, to include her record being void of information concerning a Medical Evaluation Board. In summary, there are insufficient mitigating factors to merit a change to the narrative reason for her discharge. Specifically, there is a lack of information regarding her basis of separation to render a decision and the available evidence does not support a change at this time. h. The applicant was provided with a copy of this advisory opinion to give her an opportunity to submit a rebuttal. She had not responded with a response as of 20 July 2018. 5. By regulation (AR 635-200), Soldiers separating under the provisions of AR 635-200, chapter 14-12(c) are assigned Separation Code JKQ. This code is associated with a narrative reason for separation as Misconduct (Serious Offense). 6. By regulation (AR 15-186), the ADRB did not fond an error in her separation processing; rather, it determined the character of service was harsh, and upgraded it. However, the reason for her separation remained the same. 7. By regulation (AR 635-40 (which establishes the Army Disability Evaluation System (DES) 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the medical advisory’s finding that there were insufficient mitigating factors to merit a change to the narrative reason and the applicant failing to submit a rebuttal to those findings, the Board concluded that there was insufficient evidence to show that an error or injustice was present which would warrant making a change to the narrative reason for the applicant’s discharge. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) provides that an honorable discharge is a separation with honor. 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. Paragraph 3-7b (General Discharge) provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. 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 codes to be entered on the DD Form 214. It identifies the SPD code of "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, misconduct (serious offense). 4. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned a SPD Code of "JKQ" will be assigned a RE Code of 4 based on a Under Other Than Honorable Conditions characterization of service. 5. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with AR 40-501, chapter 3, as evidenced in a medical evaluation board (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 (physical evaluation board). 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. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 6. AR 635-40 (Physical or Disability Evaluation for Retention, Retirement, or Separation) establishes the 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. 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. 7. AR 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/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. A physical profile rating of "3" in any of six rated categories (P-physical stamina, U-upper extremities, L-lower extremities, H-hearing, E-eyes, S-psychiatric) is a basis for referring a Soldier to the DES. ABCMR Record of Proceedings (cont) AR20180004628 5 1