ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 August 2020 DOCKET NUMBER: AR20180008767 APPLICANT REQUESTS: In effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 18 May 1971 to show he was discharged by reason of medical (mental health) disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 6 June 2016, with self-authored statements dated 14 May 2018 and 25 June 2018 * DD Form 214, for the period ending 18 May 1971 * Mental Health appointment letter, dated 8 June 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), 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: a. It is clear the Army erred in granting him conscientious objector status, as he did not meet Army Regulation requirements; he never stated he would never fight in other wars and he requested in front of an Army Flight Board to fly medical evacuation helicopters in Vietnam. Additionally, he had and currently has post-traumatic stress disorder (PTSD). b. He does realize that neither his command nor he knew what PTSD was and how it effects Soldiers. Today, it is treated and fully recognized by the Army. If he had been treated for PTSD while he was in the military, his discharge would be very different today. He would like the error and injustice corrected so he can continue his PTSD treatment at the Department of Veterans Affairs (VA). 1 c. He was effected by PTSD while in Vietnam, this was prior to any consideration or granting of conscientious objector status. To say he was impaired might be an understatement. PTSD was definitely the cause and effect of his conscientious objector request. d. He is being treated for PTSD by the Denver VA. If the military command had treated him for PTSD prior to his discharge, then and only then could the command make a fair decision on his discharge status. 3. Following prior enlisted service in the Regular Army, the applicant was appointed as a Reserve commissioned officer of the Army on 30 March 1967. He entered active duty on the same date. 4. The applicant served in the Republic of Vietnam from on or about 17 June 1968 through on or about 9 June 1969. He was promoted to the rank/grade of captain/O-3 effective 30 March 1969. 5. A DA Form 2496 (Disposition Form), dated 29 January 1971, indicates the applicant requested discharge by reason of conscientious objection opposed to both combatant and non-combatant military service, under the provisions of Army Regulation 635-20 (Conscientious Objection), because of his deeply held moral, ethical, and religious views. This memorandum states his request was not based on: * conscientious objection that existed but was not claimed prior to enlistment * conscientious objection claimed and denied by the selective service * objection to a particular war, or solely based upon consideration of policy, pragmatism or expediency * he found himself deeply opposed to all wars and all aspects of military training and service 6. The applicant's chain of command unanimously recommended approval of his request, with service characterized as honorable. 7. The separation authority approved the recommended discharge on 14 May 1971, under the provisions of Army Regulation 635-20, and directed the issuance of a DD Form 256A (Honorable Discharge Certificate). 8. The applicant was honorably discharged on 18 May 1971, under the provisions of Army Regulation 635-20, by reason of conscientious objection. The DD Form 214 he was issued shows he was credited with five years and 16 days of total active service. 9. The applicant provides a letter, dated 8 June 2018, wherein he is reminded of his scheduled appointment in the mental health clinic at the Denver VA Medical Center. 10. The applicant contends he was erroneously granted conscientious objector status, as he did not meet Army Regulation requirements. Army Regulation 635-20, in effect at the time, prescribed procedures whereby consideration would be given to requests for separation based on bona fide conscientious objection to participation in war, in any form, when such objection develops subsequent to entry in military service. 11. The applicant's medical record is not available for review in this case and his available personnel record is void of documentation that indicates he was suffering from any unfitting conditions, including PTSD, during his period of active duty service. In addition, there is no evidence that shows he was unable to perform his military duties due to an unfitting medical condition or that he was deemed unfit for retention at the time of his release from active duty. 12. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The ARBA Medical Advisor reviewed the supporting documents and the applicant’s military service records. His military medical records were not available for review. 2. A review of VA’s Joint Legacy Viewer (JLV) indicates the applicant has been getting medical care in the VA system since 2015. He has been diagnosed with major depressive disorder and PTSD related to Vietnam service. He does not have a service connected disability rating and there is no record of a Compensation & Pension Examination in his record. A conscientious objector discharge requires a behavioral health evaluation and there is no documentation to indicate he did not meet retention standards at the time of his discharge. A diagnosis of PTSD would not preclude a service member from applying for conscientious objector status. The applicant received an honorable discharge and there is no misconduct that would require a medical opine with respect to mitigation. BOARD DISCUSSION: The Board carefully considered the applicant's request, his statement, supporting documents, evidence in the records, and a medical review. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA Medical Advisor. The Board concurred with the ARBA Medical Advisor, finding insufficient evidence of administrative or other errors in the processing of his discharge that would support a recommendation for relief. Based on a preponderance of evidence, the Board determined the reason for the applicant's discharge was not in error or unjust. 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. 9/18/2020 X CHAIRPERSON 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 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. Title 10, USC, 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. 3. Title 10, USC, Section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent. 4. Title 38, USC, 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 VA rating does not establish an error or injustice on the part of the Army. a. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. b. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. 5. Army Regulation 635-20, prescribed policy and procedures for disposition of military personnel who, by reason of deeply held moral, ethical, or religious beliefs, claim conscientious objection to participation in war in any form. a. Consideration would be given to requests for separation based on bona fide conscientious objection to participation in war, in any form, when such objection develops subsequent to entry in military service. b. The individuals commanding officer will arrange for a counseling interview by a chaplain and a psychiatric interview by a psychiatrist (or medical officer if a psychiatrist is not available). The chaplain will submit a report of the interview directly to the applicant’s commanding officer to include comments on the sincerity of the applicant in his belief and an opinion as to the source of the belief. Likewise, the psychiatrist will submit a report of psychiatric disorder which would warrant treatment or disposition through medical channels to the applicant’s commanding officer. An honorable discharge or an under honorable conditions (general) discharge would be furnished. 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 for a medical evaluation board that 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 (Standards of Medical Fitness), Chapter 3. 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 Medical Evaluation Boards (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 (Medical Fitness Standards for Retention and Separation, Including Retirement). If an 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. In addition, in all informal cases, the PEB Liaison Officer of the medical treatment facility having control of the Soldier will be the counselor for the Soldier. As such, the PEB Liaison Officer is primarily concerned with the Soldier's interests. The Soldier will be made fully aware of the election options available to him or her, the processing procedures, and the benefits to which he or she will be entitled if separated or retired for physical disability. 7. Directive-Type Memorandum (DTM) 11-015 explains the Integrated Disability Evaluation System (IDES). It states, the IDES is the joint Department of Defense (DoD) VA process by which the DOD determines whether wounded, ill, or injured service members are fit for continued military service and by which DoD and VA determine appropriate benefits for service members who are separated or retired for a service- connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. //NOTHING FOLLOWS//