IN THE CASE OF: BOARD DATE: 31 March 2020 DOCKET NUMBER: AR20180013567 APPLICANT REQUESTS: through a Member of Congress and a Veteran Service Organization, to have his medical evaluation board (MEB) proceedings reinstated and his record reviewed for the possibility of being eligible for a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Three page self-authored statement, dated 16 May 2017 * Upstate Warrior Solution (Veteran Service Organization) document, dated 17 May 2017 * Member of Congress letter with privacy authorization form * Memorandum from (Applicant) to Commander, 4th Battalion, 25th Brigade Combat Team (BCT), Joint Base Elmendorf-Richardson, Alaska, subject: Memorandum in Support MEB of (Applicant), dated 14 February 2013 * Standard Form (SF) 600 (Chronological Record of Medical Care) - PTSD (post- traumatic stress disorder), dated 8 March 2013 (five pages) * SF 600 - MEB Referral, dated 29 March 2013 (five pages) * DD Form 2807-1 (Report of Medical History), dated 9 April (only pages 2 and 3 of 3 pages) * DD Form 2808 (Report of Medical Examination), dated 9 April 2013 (only page 1 of 3 pages) * DD Form 2697 (Report of Medical Assessment), dated 16 April 2013 * DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement, dated 9 April 2013 * SF 600, dated 23 May 2013 and 23 July 2013 (six pages) * Memorandum For Record, subject: (Applicant), MEB vs. Chapter disposition, dated 17 June 2013 * Three letter of recommendation and support * Army Discharge Review Board (ADRB) Case Report and Directive - AR20150011260, conducted on 9 September 2016 with auxiliary documents * DD Form 214 (Certificate of Release of Discharge from Active Duty), for the period ending 18 October 2013, dated 5 December 2016 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, section 1552(b); however, the 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. He was undergoing an MEB in 2012-2013 when he received a driving under the influence (DUI) charge, which ended his medical proceedings. Subsequently, he was discharged from the Army with a general discharge. b. The ADRB recently overturned his general discharge and awarded him an honorable discharge. As with the original general discharge, he feels the decision to discontinue the MEB process was unjust and would like the MEB to be reinstated and his record reviewed for a possible medical retirement. 3. In a self-authored statement, the applicant outlines his deployments to Iraq and Afghanistan. He also discusses his mental health with being diagnosed with severe PTSD, severe depression, and mild traumatic brain injury (TBI) coupled with his martial/divorce and drinking problems. While he was in therapy preparing for a medical board, he made a poor decision and received a DUI in January 2013. He notes he is taking college classes, volunteering to help other veterans, and has been sober since May 2013, and he desires assistance in determining if he is eligible for a medical retirement. 4. The applicant enlisted in the Regular Army on 4 August 2004. 5. He served in Operation Iraqi Freedom from 6 August 2005 through 1 December 2006, Operation Enduring Freedom (OEF) from 3 January 2010 through 1 January 2011, and OEF from 4 December 2011 through 2 October 2012. 6. The applicant's record contains: a. A DA Form 3975 (Military Police Report), dated 23 January 2013 that shows he was apprehended by civilian authorities, arrested, and charged with DUI on 5 January 2013. b. A General Officer Memorandum of Reprimand (GOMOR), dated 31 January 2013 he received as a result of him being arrested and charged with the offense of DUI on 5 January 2013. c. A memorandum from the applicant, dated 14 February 2013 requesting his commander approve an MEB for a medical discharge of service, instead of a pending chapter of separation. The applicant notes: * he warrants consideration of a MEB due to his severe PTSD due to three deployments * he was first seen by behavioral health in April 2007 after his first deployment * he remained a functioning alcoholic for over five years until he entered Behavioral Health and self-enrolled in the Army's Substance Abuse Program (ASAP), before getting arrested for DUI * voluntarily enrolled in an inpatient treatment facility for both PTSD and chemical dependency at the Aurora Behavior Health Facility in San Diego d. SF 600, dated 8 March 2013 shows he answered a PTSD Impact Questionnaire and another SF 600, dated 29 March 2013 shows he was being evaluated for a MEB referral. It further noted: (1) He was first diagnosed with chronic PTSD on 7 November 2012 and prior with a diagnosis of depression since 29 May 2012. The applicant was regularly seen at the Fort Richardson Behavior Health Clinic at the end of October 2012 and was hospitalized for suicidal thoughts and self-admitted into the Aurora Behavior Health Facility in San Diego for 47 days. (2) He failed to meet medical retention standards in according with Army Regulation 40-501 [Standards of Medical Fitness], paragraph 3-32(a) for depression and paragraph 3-33(a) for PTSD due to chronic and debilitating symptoms associated with his diagnoses that resulted in psychiatric hospitalization and extended PTSD residential treatment. e. A DD Form 2807-1, dated 9 April 2013 showing his medical history and indicating his chronic PTSD, depression, and other health conditions. f. A DD Form 2808, dated 9 April 2013 showing he received a separation examination indicating his diagnoses of knee pain, severe depression, anxiety, and PTSD along with other medical conditions. It further notes he was not qualified for service and required a MEB. g. A DD Form 2697, dated 16 April 2013 showing a medical professional assessed him for separation. h. A DA Form 7652, dated 9 April 2013 showing his commander noted he was pending a chapter 14, paragraph 12(c) separation. It further showed his commander noted the applicant's in-patient mental treatment, his diagnoses of severe PTSD and depression, and that he was unable to perform his duties and responsibilities with his current mental conditions. i. On an unspecified date, his immediate commander initiated action to separate him under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12(c), for commission of a serious offense, by reason of physically controlling a vehicle while drunk. j. DA Form 3822 (Report of Mental Status Evaluation), dated 19 April 2013 indicates he was evaluated by a licensed health care provider and was determined to be fit for full duty, including deployment. It also shows he could understand and participate in administrative proceedings and appreciate right from wrong, and meets medical retention requirements. It further shows he was cleared by the behavioral health clinic for administrative action under chapter 14-12(c). k. His commander recommended his separation on or about 13 May 2013. l. A DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) shows a MEB convened on 30 May 2013 at Fort Richardson, Alaska and determined the applicant's medical conditions of PTSD, combat related and chronic severe depression did not meet medical retention standards. He was recommended to a Physical Evaluation Board (PEB) and agreed with the board's findings and recommendation on 12 June 2013. m. Subsequently, on 19 July 2013, the separation authority after reviewing his separation packet and completed MEB, determined his disability was not the cause, or substantial contributing cause, of the misconduct and no other circumstances warranted disability processing instead of alternate administrative separation. He directed the applicant's case not be processed through medical disability channels. He further directed his separation with a general, under honorable condition characterization of service. 7. The applicant applied to the ADRB for an upgrade of his discharge and a change to his narrative reason for separation. On 9 September 2016, the ADRB granted partial relief by upgrading his characterization of service to honorable and determined the reason for discharge was proper and equitable and voted not to change it. 8. The applicant's record contains a DD Form 214, dated 5 December 2016 that shows his characterization of service as honorable and he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12(c), by reason of misconduct, serious offense. 9. In addition to the above, the applicant submitted six-pages of an SF 600 indicating his medical conditions and treatments, a memorandum for record from the Fort Richardson Behavior Health Clinic, dated 17 June 2013 requesting leniency in his case of separation, and three recommendation/character letters of his patriotism and professionalism. 10. 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: Per the Medical Advisor, did NOT meet medical retention standards due PTSD and Depression. On 30 May 2013, the Medical Evaluation Board (MEB) determined both conditions failed to meet retention standards and recommended referral to the Physical Evaluation Board. initiated treatment from Apr – Aug 2012 while deployed for ADHD, Depression, and to address combat operational stress issues and family concerns. He was prescribed Prozac and Adderall. He was diagnosed with PTSD and Insomnia in Nov 2012 and prescribed Buspar and Lunesta. He continued therapy and medication management in the outpatient clinic from Nov 2012 through Jan 2013. On 29 Jan 2013, he was evaluated in the Army Substance Abuse Program clinic. His enrollment for ASAP treatment was delayed until 28 May 2013 due to psychiatric hospitalization on 1 Feb 2013. He was hospitalized for suicidal ideation from Feb 2013 until 18 Mar 2013. He continued outpatient treatment and ASAP treatment following his discharge. On 20 Mar 2013, he completed his post hospitalization appointment. The provider noted met criteria for an MEB referral. On 9 Apr 2013, he was evaluated by the MEB provider and documents were completed for submission to the MEB. On 19 Apr 2013, he was evaluated by a social worker for pending chapter separation. The provider noted was in the MEB process for PTSD but documented on DA3822 that he was fit for duty and deployable and met retention standards which is not consistent with his referral for MEB. On 30 May 2013, the MEB determined did not meet retention standards based on his PTSD and Depression. Post- service, he has been diagnosed with PTSD, Adjustment Disorder with mixed anxiety and depressed mood, and ADHD by the VA. is 90% service connected for PTSD. Recommend referral to the Disability Evaluation System for consideration regarding medical retirement. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. 12. 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. a. The case of a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless: * the investigation ends without charges * the officer exercising proper court-martial jurisdiction dismisses the charges * the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence b. An enlisted Soldier may not be referred for, or continue, physical disability processing action when action has been started under any regulatory provision which authorizes a character of service of under other than honorable conditions. If the case comes within these limitations, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation. This authority may not be delegated. A case file may be so referred if the general court-martial convening authority finds the following: * the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions * other circumstances warrant disability processing instead of alternate administrative separation 13. 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, initiation of MEB proceedings and referral to a PEB, the frequency and nature of his misconduct, the termination of MEB proceedings, the decision by the separation authority and the reason for his separation. The Board considered the upgrade of his discharge by the ADRB and the review, conclusions and recommendation of the medical advising official. Based on a preponderance of evidence, the Board determined that the applicant should be afforded continued processing through the disability evaluation system. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. 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: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his record to the Office of the Surgeon General for further review: a. If a review by the Office of The Surgeon General determines the evidence supports it, the individual concerned will be afforded continued due process through the Disability Evaluation System for consideration of any diagnoses identified as having not met retention standards prior to his discharge. b. In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should be separated or retired for disability, these proceedings serve as the authority to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay. 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 any relief without benefit of the review described above. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. 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). 4. Army Regulation 635-40 (Standards of Medical Fitness) 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. 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. The case of a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless: * the investigation ends without charges * the officer exercising proper court-martial jurisdiction dismisses the charges * the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence c. An enlisted Soldier may not be referred for, or continue, physical disability processing action when action has been started under any regulatory provision which authorizes a character of service of under other than honorable conditions. If the case comes within these limitations, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation. This authority may not be delegated. A case file may be so referred if the general court-martial convening authority finds the following: * the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions * other circumstances warrant disability processing instead of alternate administrative separation 5. Army Regulation 635-40 states that 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 the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. It states commanders of medical treatment facilities (MTFs) who are treating Soldiers may initiate action to evaluate the Soldier’s physical ability to perform the duties of his or her office, grade, rank, or rating. The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition. If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB. 7. 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%. 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 at less than 30%. 8. 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. a. 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. b. 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) AR20180013567 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1