BOARD DATE: 3 April 2020 DOCKET NUMBER: AR20180014914 APPLICANT REQUESTS: honorable physical disability discharge in lieu of an uncharacterized discharge due to entry-level performance and conduct. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 13 February 1993 * self-authored statement, dated 24 March 1993 * Line of Duty (LOD) investigation memorandum, dated 13 April 1993 * two copies of DD Form 214 (Certificate of Release or Discharge from Active Duty), with a through date of 2 April 1993 * Department of Veterans Affairs (VA) letter, dated 24 August 1994 FACTS: 1. The applicant did not file within the three year time frame 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. She sustained a back injury while in basic combat training (BCT) that caused her stress and depression. She was evaluated by the VA and they determined she had a 20 percent disability due to a service-connected injury. This back injury was the main cause of the stress that caused her depression, as she could not continue to participate in training. She provided a DA form 2173 showing her injury happened during BCT. b. Please consider making a change to her discharge as her injury happened while she was on active duty, but her disability evaluation was not completed until she returned home and was evaluated by the VA doctors at the Palo Alto, CA. She feels it would have made a difference in her discharge had the service-connected disability been issued sooner. c. She always assumed her discharge was medical and uncharacterized. It wasn’t until recently, after applying for a VA home loan, that this issue arose and she was advised to submit a request for a change in discharge status. 3. The applicant enlisted in the Regular Army on 6 January 1993. 4. A DA Form 2173 shows she underwent examination at McWethy Health Clinic at Fort Jackson, SC on 18 February 1993, after she sustained an injury to her lower back and left side during hand-to-hand combat instruction during BCT. On 25 March 1993, the injury was considered to have been incurred in the line of duty. 5. The applicant provided a self-authored statement, dated 24 March 1993, in which she stated she felt it would be in her best interest if she were discharged from the Army, due to the fact that personal family matters and a back problem put undue stress and pressure on her. This has caused her emotional state to be unstable. She found herself in a constant depression, always breaking down in tears and having problems sleeping and eating. She knew she could not make it in the Army under these conditions and that is why she felt she should be discharged from the Army. 6. A Disposition Form shows the applicant was referred to Community Mental Health Service where she was evaluated on 23 March 1993 for possible Army separation. The form shows she stated she was depressed and she showed signs of low motivation and self-discipline. She also stated she no longer wanted to be in the military, couldn’t take the military life anymore, and wanted to go home. 7. A psychiatric assessment, dated 24 March 1993, by a licensed clinical social worker at the Community Health Service states: a. The applicant was sent by her unit for evaluation of depression, crying, and poor motivation. Her performance in training was noted to be marginal. She reported feeling stressed with sleeping and eating problems, shaking, poor concentration, and frequent crying. She began having problems in BCT that worsened when she started Advanced Individual Training, now wanting a discharge from the Army. b. There were insufficient emotional findings to warrant the diagnosis of a major depressive disorder and the diagnostic impression was adjustment disorder with mixed emotional features, severe. Adjustment disorders are the result of an individual’s difficulty in adapting to a specific external stressor. Adjustment disorders can occur even when the individual’s work, social, and educational history indicate there is no personality disorder. The verbal and physical stress inherent in the training environment can easily produce such an adjustment problem. The disorder is likely to recur in future stressful situations, particularly in combat. This limits the individual’s potential as a Soldier and could pose a danger to the Soldier and the unit in a combat situation. This diagnosis does not warrant discharge through medical channels. Potential for successful completion of military service is considered poor at this time. c. It was strongly recommended the applicant be discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11. It was also recommended she be removed from training and supervised by the unit to deter her condition from deteriorating. 8. Her records contain multiple DA forms 4856 (General Counseling Form), which show she was counseled for her failure to adapt to the military and that she would be separated from the Army based her inability to adapt. 9. On 26 March 1993, the applicant was notified by her immediate commander of her proposed separation from the Army under the provisions of Army Regulation 635-200, Chapter 11, entry level performance and conduct. The reason for the proposed action was the applicant’s failure to adapt to the military and her diagnosis with an adjustment disorder with severe mixed emotional features. She was advised of her rights, to include the right to consult with counsel, submit statements in her own behalf, and request a separation physical if she felt her physical status had changed since her last examination. 10. On 26 March 1993, the applicant acknowledged the proposed separation were approved, she would receive an entry-level separation with uncharacterized service. She elected not to consult with counsel or to make statements in her behalf. She also acknowledged she was not required to undergo a medical examination for separation under the provisions of chapter 11, Army Regulation 635-200 and she indicated she did not desire a separation medical examination. 11. On 31 March 1993, the recommendation for the applicant’s separation under the provisions of Army Regulation 635-200, Chapter 11 was approved and it was directed her service would be uncharacterized. 12. The applicant provided an LOD memorandum, which shows her LOD investigation was reviewed for completeness on 13 April 1993 and her injury was found to have been in the LOD. 13. Her DD Form 214 shows she was discharged on 2 April 1993, after 2 months and 27 days of net active service, under the provisions of Army Regulation 635-200, chapter 11, due to entry level status performance or conduct. Her service was uncharacterized. 14. A letter from the VA, dated 24 August 1994, shows the applicant was granted a service-connected disability rating of 20 percent for residuals of low back injury, with limitation of motion and muscle spasms. 15. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the applicant’s iPERMS records and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant, without primary MOS, is requesting a change in discharge from Uncharacterized to medical discharge. She is essentially requesting disability severance separation or retirement for depression and a back injury contending she has received a 20% disability rating from the VA. She sustained a back injury during hand to hand instruction during training and received an entry level discharge. In a letter in March 1993, the applicant indicated that personal family matters and the back injury caused so much stress and emotional instability with ensuing depression, that she didn’t feel she could endure in the Army. She is receiving 20% disability compensation by the VA for the back injury only. No in service treatment records nor discharge exam were found. The presumption in these situations is that the Army regulations were followed. Therefore a recommendation for separation through medical channels is not indicated at this time. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and a review by ARBA medical advisor. The Board considered the applicant’s statement, her record and length of service, the absence of documents showing she was awarded an MOS, her in-line-of-duty injury, in-service and post- service medical documents, her declination of a separation medical examination, her VA rating, the reason for her separation and her entry-level status when discharged. The Board considered the review by the agency medical advisor. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was 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. 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. 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 Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 3. 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. 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 physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty 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 or 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 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 are either 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 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 medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. d. 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. e. 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 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. 5. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 3 states a separation will be described as entry level with uncharacterized service if the Soldier is in an entry-level status at the time separation action is initiated. b. Chapter 11 provides for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. When separation of a Soldier in entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, he or she will normally be separated per this chapter. Service will be uncharacterized for entry-level separation under the provisions of this chapter. This policy applies to Soldiers in the Regular Army, Army National Guard (ARNG), and USAR who have completed no more than 180 days of continuous active duty or initial active duty for training (IADT) or no more than 90 days of Phase II under a split or alternate training option. c. Section II (Terms) of the Glossary defines entry-level status for Regular Army Soldiers as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service. For ARNG and USAR Soldiers, entry-level status begins upon enlistment in the ARNG or USAR. For Soldiers ordered to IADT for one continuous period, it terminates 180 days after beginning training. For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II of Advanced Individual Training. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180014914 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1