ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  17 July 2019

	DOCKET NUMBER:  AR20180006117


APPLICANT REQUESTS:  a medical discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Veterans Affairs (VA) Rating Verification, Award Letter, and Rating Decision
* Previous VA Rating Verification, Award Letter, and Rating Decision
* Retirement Points History Statement
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* Traumatic Event Details
* Temporary Change of Station (TCS) Orders
* Tricare Authorization Forms
* Orders Amendments
* DA Form 3349 (Physical Profile)
* Patient Outpatient Record
* Military Acute Concussion Evaluation (MACE) Card
* Tricare Authorization Form
* DD Form 2697 (Report of Medical Assessment)
* DA Form 638 (Recommendation for Award)
* Progress Notes

FACTS:

1.  The applicant states, he was medically disqualified from the Army National Guard, and was never afforded the opportunity to elect referral through the Physical Disability Evaluation System.  He states that he was not allowed due process of a final disposition.  He is currently rated at 90% service connected disability from the VA.

2.  The applicant provides:

	a.  VA Rating Verification, Award Letter, and Rating Decision, which states the percentages for each service connected disability, and the amount of award.

	b.  Previous VA Rating Verification, Award Letter, and Rating Decision, which states the percentages for each service connected disability, and the amount of award.

	c.  Retirement Points History Statement, dated 27 January 2016, Which states a cumulative list of points earned towards retirement.

	d.  DA Form 2173, dated 17 January 2011.

	e.  Traumatic Event Details, dated 8 March 2018, which states that the applicant was the driver during a route clearance patrol when they were struck by a explosively formed penetrator (EFP).  After the explosion he suffered from back pain, headaches, ringing in the ears and Post Traumatic Stress Disorder (PTSD) symptoms, which he claims is why he did not follow up at the administrative level.  He was then diagnosed with traumatic brain injury by the VA.  Later he claimed and was granted 50% VA disability for PTSD.

	f.  TCS Orders, dated 16 April 2010, which assigns the applicant to Tikrit, Iraq for a period not to exceed 351 days in support of Operation Iraqi Freedom.

	g.  Tricare Authorization Forms, dated 28 March 2011.

	h.  Orders Amendments, dated 29 October 2010.

	i.  DA Form 3349, dated 9 December 2015, which states the applicant is non-deployable due to Neurotic Depression, prolonged PTSD.  This profile was provided not during a period of active duty.

	j.  Patient Outpatient Record, dated 4 February 2011

	k.  MACE Card, dated 1 February 2011, which states the applicant suffered from a headache and sore back after an explosion.

	l.  Tricare Authorization Form, dated 31 March 2011.

	m.  DD Form 2697, dated 22 February 2011.

	n.  DA Form 638, dated 8 November 2010, which states the applicant was recommended and approved for an Army Commendation Medal.

	o.  Progress Notes, printed 8 March 2018. 

3.  A review of his service records shows:

	a.  He enlisted on 9 November 2007 in to the Puerto Rico Army National Guard (PRARNG).

	b.  He reported for mobilization to Fort McCoy, Wisconsin on 5 March 2010.  The period of active duty was not to exceed 400 days.  He served in Iraq in support of Operation Iraqi Freedom/New Dawn from 23 April 2010 to 19 February 2011.

	c.  On 7 April 2011, the applicant was released from Active Duty under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative
Separations), chapter 4 (Separation for Expiration of Service Obligation).  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 11 months and 15 days of total active service.  It shows in:

* Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized),

* Army Commendation Medal
* Army Good Conduct Medal
* National Defense Service Medal
* Global War On Terrorism Service Medal
* Iraq Campaign Medal with Campaign Star
* Army Service Ribbon
* Overseas Service Ribbon
* Armed Forces Reserve Medal with M Device
* Combat Action Badge
* Driver And Mechanic Badge with Driver-Wheeled Vehicle Bar

* item 23 (Type of Separation), Released from Active Duty
* item 24 (Character of Service), Honorable
* item 25 (Separation Authority), AR 635-200, Paragraph 4
* item 26 (Separation Code), MBK (Completion of Required Active Service)
* item 27 (Reenlistment Code), NA
* Item 28 (Narrative Reason for Separation), Completion of Required Active Service

	d.  On 20 November 2015, the applicant's immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations), Chapter 6 (Convenience of the Government), based on his medical conditions which does not allow him to perform his military duties required for his military occupational specialty (MOS). 

	e.  The applicant acknowledged notification of the pending separation and elected to waive referral to the Non-Duty Related Physical Evaluation Board System in writing and request an Honorable Discharge from the Army National Guard of the Commonwealth of Puerto Rico.

	f.  On 20 November 2015, the applicant, in writing, requested immediate separation and a waiver of a Physical Evaluation Board (PEB) Evaluation.  He stated in writing:

* The medical disability found is neither incident to nor aggravated by my military service
* He has been fully informed and understand that he is entitled to the same consideration and processing as any other Soldier of the Army separated for physical disability
* He understands this includes the consideration of my case by a Physical Evaluation Board, and he elects not to exercise this right
* He understands the VA will determine entitlement to VA benefits
* If this application is approved, he understands that he will be separated by reason of Non Duty Related (NOR) physical disability
* understand that he will receive a discharge in keeping with the character of my service, as decided by the officer designated to conduct my separation

g.  His NGB Form 22 (Report of Separation and Record of Service) reflects he was separated under the provisions of AR 135-178, with a honorable characterization of service from the ARNG on 30 November 2015.  He had 8 years and 22 days of total service for pay.

4.  On 23 April 2019, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion and opined:

	a.  The applicant’s available record did not reasonably support PTSD or another boardable behavioral health condition(s) during the time of the applicant's active military service.

	b.  The applicant met medical retention standards at separation from active service.

	c.  The applicant met medical retention standards for adjustment disorder, insomnia, back pain, muscle spasms, headache, and other physical, medical, dental and/or behavioral conditions in accordance with (IAW) Chapter 3, AR 40-501 (Standards of Fitness), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service.

	d.  The applicant met medical retention standards for other physical, medical, dental and/or behavioral conditions IAW Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service.

	e.  The applicant's medical conditions were duly considered during medical separation processing.

	f.  A review of the available documentation found insufficient evidence of a medical disability or condition that would support a change to the character and/or reason for the discharge in this case.

	g.  After comprehensive review of the medical and other records, the ARBA Medical Advisor concludes that there is insufficient cause to recommend a change in the applicant's medical disqualification for any of the contended condition(s).  Not in the line of duty per NGB Form 22.  There was no clear indication for disability evaluation system (DES) processing, i.e. no clear indication for medical evaluation board (MEB)/PEB.

	h.  The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  Congress grants that role and authority to the Department of Veterans Affairs, operating under a different set of laws.

5.  On 23 April 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal.  He did not respond.

6.  By regulation (AR 135-178), a Soldier may be separated for the convenience of the Government.  The separation authority may approve discharge under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of military duty.

7.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.


BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief was not warranted.  The applicant’s contentions and the medical advisory opinion were carefully considered.  His record shows completed his period of active duty without having any boardable medical conditions.  While a member of the ARNG, he declined to have his medical conditions screened by a PEB.  Based upon the preponderance of evidence, the Board determined there was no error or injustice in this case and denies relief.


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.  Army Regulation (AR) 135-178 (), sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance

	a.  Chapter 6, establishes what reasons a Soldier may be separated for the convenience of the Government.  The separation authority may approve discharge under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of military duty. Such conditions may include, but are not limited to, chronic airsickness or seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, personality disorder, and other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to perform military duties effectively is significantly impaired.

	b.  An honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Characterization at separation will be based upon the quality of the Soldier’s service, including the reason for separation and guidance set forth in paragraph 2-9, subject to the limitations under the various reasons for separations.  The quality of service will be determined in accordance with standards of acceptable personal conduct and performance of duty for military personnel as found in the UCMJ, Army regulations, and the time-honored customs and traditions of the Army.

2.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement or Separation), establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC).  It 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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

3.  AR 40-501 (Medical Services – Standards of Medical Fitness) governs regulation governs Medical fitness standards for enlistment, induction, and appointment, including officer procurement programs, Medical fitness standards for retention and separation, including retirement, Medical fitness standards for diving, Special Forces, Airborne, Ranger, free fall parachute training and duty, and certain enlisted military occupational specialties (MOSs) and officer assignments.  It also governs Medical standards and policies for aviation, Physical profiles, and Medical examinations.

4.  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.

5.  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; TBI; sexual assault; sexual harassment.  Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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 that misconduct which led to the discharge.

6.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  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 based on 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)	 AR20180006117


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