ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 August 2019 DOCKET NUMBER: AR20180014803 APPLICANT REQUESTS: * amendment of his narrative reason for separation to physical disability discharge or “other” * upgrade of his reentry eligibility (RE) code APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) letter FACTS: 1. The applicant states: a. After approximately 3 years of service, he began to experience lower back problems. Toward the end of his service, his pain was conspicuous in his everyday life as a Soldier. Not only did he begin to perform poorly on his Army Physical Fitness Tests (APFT), but he was struggling to keep up with his fellow Soldiers while on patrols and during normal physical demands evident in the life of any Military Policeman (MP). b. His failed APFTs still bother him, but he was experiencing significant challenges to perform satisfactorily owed to his physical injury. During this time he experienced depression and this continues to be a problem, along with his lumbar spine pain. Both of these conditions are listed among his VA rated service-connected disabilities. c. He requests the Board to change his narrative reason for separation to physical disability or “other” to provide greater favorability for a higher RE code and his possible reentry into the Service. 2. The applicant enlisted in the Regular Army on 26 March 2013 and was awarded military occupational specialty (MOS) 31B (MP). 3. His records contain two DA Forms 705 (APFT Scorecard), which show he failed two Record APFTs on 16 October 017 and again on 16 November 2017. 4. His records contain numerous DA Forms 4856 (Developmental Counseling Form), which show he received counseling on the following occasions under the following circumstances: * on 18 October 2018, to discuss his failure of the APFT on 16 October 2017 and possible corrective actions including participation in remedial APFT training and improved nutritional health * on 17 November 2017, to discuss his second consecutive APFT failure on 16 November 2017 and informing him of his referral to the chain of command for administrative action to include the initiation of suspension of favorable actions * on 12 December 2017, to inform him of the initiation of involuntary separation 5. A DA Form 3822 (Report of Mental Status Evaluation), dated 9 November 2017 shows the applicant underwent a mental status evaluation on the date of the form for the purpose of administrative separation under the provisions of Army Regulation 635- 200 (Active duty Enlisted Administrative Separations), chapter 13, for unsatisfactory performance. a. He was screened for post-traumatic stress disorder (PTSD), depression, traumatic brain injury (TBI), substance misuse, and sexual trauma. b. He was found to have no duty limitations due to behavioral health reasons, met medical retention standards, and was cleared for administrative action. No follow up was needed. c. He was found to be mentally responsible, able to distinguish right from wrong, and had the mental capacity to understand and participate in administrative proceedings. He did not have a behavioral health condition that warranted disposition through medical channels. 6. A DD Form 2808 (Report of Medical Examination), dated 12 December 2017 shows the applicant underwent a medical examination for the purpose of separation on the date of the form. He was given a physical profile rating of “1” in all categories and was found qualified for service. 7. On 19 January 2018, he was notified by his immediate commander of his initiation of action to separate him under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance based on his failure of two consecutive APFTs and recommended the applicant’s service be characterized as honorable. The applicant was notified of his rights, including the right to consult with appointed counsel or request a hearing before an administrative board if he had 6 or more years of total service. 8. The applicant acknowledged receipt of the separation notice on 19 January 2013. He acknowledged having been advised by counsel of the basis for the contemplated involuntary separation, its effects, and the rights available to him. He waived representation by counsel and acknowledge he understood he may expect to encounter substantial prejudice in civilian life if he were issued a general discharge under honorable conditions. He did not submit statements in his own behalf. 9. On 26 January 2018, the approval authority directed the separation of the applicant prior to his expiration term of service under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with an honorable characterization of service. 10. His DD Form 214 shows he was discharged accordingly under the provisions of Army Regulation 635-200, chapter 13 on 5 February 2018 after 4 years, 10 months, and 10 days of net active service this period. His narrative reason for separation is unsatisfactory performance, his separation code is JHJ, and his RE code is 3. 11. The applicant provided a letter from the VA, dated 31 July 2018, which shows the applicant’s combined disability rating is 50 percent for the following service-connected disabilities: * adjustment disorder with mixed anxiety and depressed mood (claimed as anxiety/depression), 30 percent * tinnitus, 10 percent * lumbar spondylosis L5-S1 (claimed as back pain), 10 percent * bilateral pes planus (claimed as flat feet), 10 percent 12. On 1 July 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion, which states the applicant met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). A review of the available documentation found insufficient evidence of a medical disability or condition that would support a change to the character, reason, or disability determination in this case. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 13. The applicant was provided a copy of the advisory opinion on 5 July 2019 and given an opportunity to submit comments, but he did not respond. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the record of counseling for failed APFTs, the reason for his separation, his separation physical results and his post-service VA documents. The Board considered the review and conclusions of the medical advising official. The Board agreed that there was insufficient evidence to show the applicant failed to meet medical retention standards prior to his separation or that there were mitigating factors for his failed APFTs. Based upon a preponderance of evidence, the Board determined that the reason for the applicant’s separation and the reenlistment code his received were not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. 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, 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 Military Occupational Specialty (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 physical evaluation board (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. 2. Army Regulation 635-40 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. 3. Army Regulation 635-200 (Active duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 contains policy and outlines procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. b. Initiation of separation proceedings is required for Soldiers without medical limitations who have two consecutive failures of the APFT or who are eliminated for cause from Noncommissioned Officer Education System courses, unless the responsible commander chooses to impose a bar to reenlistment. c. The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records. 4. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 (U.S. Army Reentry Eligibility Codes) includes a list of RE codes. a. RE code 1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. RE code 3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible for enlistment unless a waiver is granted. 5. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific reasons for separating Soldiers from active duty and the associated SPD codes to be entered on the DD Form 214. It states SPD code JHJ is the appropriate code to assign to Soldiers discharged under the provisions of Army Regulation 635-200, chapter 13, due to unsatisfactory performance. 6. The SPD/RE Code Cross-Reference Table provides instructions for determining the RE code for Regular Army and Reserve Component Soldiers being separated. The Table in effect at the time stipulates an RE code of 3 will be assigned to members separated with an SPD code of JHJ. 7. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the 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. These two government agencies operate under different policies. 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. ABCMR Record of Proceedings (cont) AR20180014803 2 1