BOARD DATE: 14 July 2020 DOCKET NUMBER: AR20180010259 APPLICANT REQUESTS: in effect, reconsideration of his prior requests for upgrade of his general discharge under honorable conditions and physical disability discharge in lieu of as a result of court-martial APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 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 cases by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140012400 on 10 March 2015 and Docket Number AR20150007202 on 23 June 2016. 2. The applicant states: a. He would like the Board to please reconsider their prior decisions and upgrade his discharge to honorable because the Department of Veterans Affairs (VA) has awarded him a 100 percent total and permanent disability for his service-connected injuries. b. His service-connected injuries are post-traumatic stress disorder (PTSD) with major depression with psychosis, sleep insomnia disorder, and depressive disorder. 3. After several months in the Delayed Entry/Enlistment Program, the applicant enlisted in the Regular Army on 8 July 1981. 4. The applicant previously provided a Standard Form 502 (Narrative Summary) with a prior application which shows: a. He was admitted to the U.S. Army Hospital at Fort Stewart, GA, on 13 February 1982 subsequent to a motor vehicle accident with possible trauma to the anterior neck. b. His physical examination was normal except for mild tenderness over the right lateral neck. No crepitus (grating sound caused by friction between bone and cartilage or the fractured part of a bone) was audible. His urinalysis, chest X-ray, and multiple views of the soft tissue of the neck were all normal. There was no impairment of the air column, swelling of the epiglottis, or displacement of the air column away from the cervical spine. c. He was admitted for observation of his airway as he was unable to speak following the accident. Physical examination further revealed the applicant engaged air without difficulty; however, when asked to annunciate the letter “E” he was unable to move air. This was interpreted as a conversion reaction due to a lack of patient cooperation. Attempts at laryngoscopy were unsuccessful. The applicant was treated with observation and exhibited a complete and miraculous recovery following which he was returned to duty upon discharge on 19 February 1982. 5. Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart Special Court- Martial Order Number 104, dated 30 August 1982, shows the applicant was arraigned and tried by special court-martial on 22 July 1982, where he was charged with and found guilty of three specification of absenting himself without authority from his unit on the following occasions: * from 30 April 1982 through 11 May 1982 * from 17 May 1982 through 25 June 1982 * from 6 July 1982 through 7 July 1982 6. On 22 July 1982, he was sentenced to discharge from the service with a Bad Conduct Discharge (BCD), forfeiture of $200.00 pay per month for 2 months, confinement at hard labor for 2 months, and reduction to the rank/grade of private/E-1. 7. Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart Special Court- Martial Order Number 13, dated 10 February 1983, shows the sentence as promulgated in the above-referenced Special Court-Martial Order, was affirmed. The portion of the sentence pertaining to confinement having been served, and all else having been complied with, the sentence would be duly executed. 8. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he was issued BCD on 10 February 1983, after 1 year, 5 months, and 10 days of net active service, as a result of court-martial, with four periods of lost time. 9. His available service records from this period do not show: * he was issued a permanent physical profile rating * he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 10. The applicant applied to the Army Discharge Review Board (ADRB) in October 1982, requesting an upgrade of his discharge to honorable. On 8 August 1984, the ADRB granted partial relief in the upgrading of the applicant’s discharge to general, under honorable conditions. The ADRB had determined the applicant was properly discharged, however the characterization of his discharge was determined to be inequitable by the majority of the Board based on information indicating the applicant’s command summarily referred all absences without authority over 30 days to special- court-martial, which was prejudicial to the applicant. 11. The applicant’s prior DD Form 214 was voided and a new DD Form 214 was issued, showing he was discharged as a result of court-martial on 10 February 1983 and the characterization of is service was general, under honorable conditions. 12. The applicant previously applied to the ABCMR on two occasions. a. On 10 March 2015, the Board denied the applicant’s request for discharge upgrade to honorable. In his application he contended that an automobile accident he was in while on active duty caused him to have a complete mental change in his behavior and self-control and that he continued to suffer from symptoms related to the accident. The Board determined the evidence presented did not demonstrate the existence of a probable error or injustice. b. The applicant again applied to the ABCMR, requesting reconsideration of his request for discharge upgrade and as a new request physical disability discharge. On 23 June 2016, the Board denied the applicant’s requests, determining the evidence presented did not demonstrate the existence of a probable error or injustice. 13. The applicant’s VA Rating Decisions enumerating his service-connected diagnoses and ratings are not in his available records for review and have not been provided by the applicant. 14. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. Due to liberal consideration guidance, the applicant’s service connected PTSD mitigates the basis for separation. With regards to medical retirement, documentation does not support his request. Rather, documentation supports the applicant was fit for duty at separation; he held a job and PTSD symptoms did not present until approximately 2015-2016. Moreover, an in- and post-service Conversion Disorder diagnosis and post-service Personality Disorder diagnosis were more likely than not what was present at separation. b. Due to the period of service, active duty electronic medical records are void. The applicant submitted records reflecting the car accident, Conversion Disorder diagnosis, and full recovery with return to duty. c. The applicant is 100% service connected for PTSD. In May and November 2015, he was examined for a TBI and determined to not have a TBI or residuals of a TBI “now … ever…” It was noted an AWOL prior to the MVA. The applicant went to behavioral health in January 2016 reporting stress due to finances. He noted working as a Correctional Officer for two years, but had to resign “due to being told he used excessive force.” He then worked as a Taxi Driver for 24 years. He was diagnosed with Depression. In April, his diagnosis changed to PTSD. In September 2017, the applicant had neuropsychological testing with diagnoses of Conversion Disorder, Mixed Personality Disorder, Anxious Depression, and rule out of PTSD. The provider believed Conversion and Personality Disorders were more likely than not causing a misperception of events leading to a self-report of trauma symptoms; however there was not likely a trauma disorder, i.e. PTSD. 15. 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. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 16. 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. 17. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. 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. BOARD DISCUSSION: After review of the application and all evidence, including the applicant’s requests and contentions and the Medical Advisory Opinion, the Board determined that there is sufficient evidence to grant partial relief and amend ABCMR's decision in Docket Number AR20140012400 on 10 March 2015 and Docket Number AR20150007202 on 23 June 2016. 1. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record and found evidence of an injustice. The Board agreed with the Medical Advisory opinion that the applicant is 100% serviced-connected for PTSD and PTSD mitigates the misconduct that resulted in the discharge. The Board found that the punishment for the misconduct was too severe. Therefore, the Board found that the discharge characterization was mitigated. 2. Regarding the applicant’s request to change his narrative reason, the Board found sufficient evidence to grant partial relief. a. The Board agreed with the Medical Advisory opinion that there is insufficient contemporaneous evidence that the applicant had an unfitting condition at time of service that would have merited processing for a medical retirement. Therefore, the Board found insufficient evidence to change the narrative reason to Medical Retirement. b. However, the Board found that as a matter of equity, the applicant should have been afforded the option to receive an administrative discharge vice court martial for his AWOL. A prior ADRB found information indicating the applicant’s command summarily referred all absences without authority over 30 days to special-court-martial, which was prejudicial to the applicant. Therefore the Board determined that the applicant faced an injustice and his narrative reason should be changed to “Secretarial Authority”. 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: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20140012400 on 10 March 2015 and Docket Number AR20150007202 on 23 June 2016. 1. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending “83-02-10” showing: a. in item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) “Mortar Bars” vice “Montar Bars” b. his characterization of service (item 24) as “Honorable,” c. the separation authority (item 25) as “AR 635-200, para 5-3,” d. the separation code (item 26) as “JFF,” and e. the narrative reason (item 28) as “Secretarial Authority.” 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 a Medical Retirement. 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, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 2. 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, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on 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 misconduct that led to the discharge. 3. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of 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. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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. 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. c. Chapter 3, in effect at the time, provided that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review was required to be completed and the affirmed sentence ordered duly executed. 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. 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 (Standards of Medical Fitness), 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. 6. 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. 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. 4. 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. 7. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 8. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180010259 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1