ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 July 2019 DOCKET NUMBER: AR20180016482 APPLICANT REQUESTS: honorable discharge due to physical disability in lieu of honorable discharge due to misconduct (drug abuse). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter * Standard Form 600 (Chronological Record of Medical Care) * MEDBASE Form 2766-F (Adult Preventive and Chronic Care Flowsheet) * partial DD Form 2808 (Report of Medical Examination) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214) * partial Social Security Administration (SSA) statement * Department of Veterans Affairs (VA) Rating Decision FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 discharged from the Army for misconduct, but his discharge should be reevaluated for medical separation. He was retained in the service for 432 days past his initial contract for the convenience of the Government. b. While in the Army, he was wounded in action and awarded a Purple Heart. He was also diagnosed with post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and chronic back pain with radiculopathy (numbness or decreased sensation due to nerve compression). His exit physical notes the diagnosis of these conditions and he was receiving treatment for these conditions at the time of his separation. He was self- medicating at the time to deal with pain and anxiety. c. He was rated by the VA for these conditions immediately after leaving the service. His VA rating includes individual unemployability and he was also granted SSA disability on 27 October 2011 for these same conditions. Prior to being extended in the service, he had secured employment outside of the Army. When he was going through the discharge process, he was told that by requesting a hearing he would delay his separation from the service and risk losing employment opportunities. 3. The applicant enlisted in the Regular Army on 13 February 2002 and was awarded the military occupational specialty (MOS) 19K (Armor Crewman). 4. He served in Kuwait/Iraq in support of Operation Iraqi Freedom from 7 April 2003 through 15 March 2004 and from 2 February 2005 through 27 January 2006. 5. He provided a Standard Form 600, which shows he was seen for a non-battle illness appointment as an outpatient on 19 October 2005, to obtain a medication refill for Lexopril. His listed background information shows he began taking the medication about 3 months prior this appointment to treat depression. The medication was effective with no side effects and he wanted to continue with it. 6. He also provided a MEDBASE Form 2766-F, which shows he was prescribed Ambien (used to treat insomnia) on 7 February 2006 and Promethazine (used chiefly to treat the symptoms of allergies and motion sickness) on 24 March 2006. 7. A DA Form 4856 (Developmental Counseling Form) shows he was counseled by his company commander on 10 March 2006 for testing positive for marijuana on a 2 February 2006 urinalysis. 8. A DD Form 2808, shows he underwent medical examination on 14 March 2006, for the purpose of separation. The form shows: * he was diagnosed with PTSD * he was qualified for service * his physical profile rating was “1” in all categories * his listed defects and diagnoses included chronic back pain with radiculopathy, foot pain, acid reflux, and generalized anxiety disorder (GAD)/PTSD 9. A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), shows he accepted nonjudicial punishment under Article 15 of the UCMJ on 23 March 2006 for using marijuana between on or about 2 January 2006 and on or about 2 February 2006, as evidenced by a positive urinalysis. 10. A second DA Form 2627, shows he was again counseled by his company commander on 24 April 2006, for testing positive for marijuana on a 27 March 2006 urinalysis. The key points of discussion indicate this was the applicant’s third such offense in the prior 3 months and he would be recommended for discharge based on a pattern of misconduct. 11. A MEDCOM Form 4038 (Report of Behavioral Health Evaluation) dated 26 April 2006, shows: * the applicant underwent a behavioral health evaluation because he successfully completed the Army Substance Abuse Program (ASAP) and was scheduled to be discharged upon his expiration term of service (ETS) on the upcoming Monday * it was recommended he be allowed to clear the installation as planned * he was psychiatrically cleared for any administrative action deemed appropriate by his command * there were no recommended precautions and he was to return to duty with no change in duty status with no treatment deemed to be necessary * he was given no diagnoses 12. On 27 April 2006, the applicant was notified by his immediate commander of his initiation of action to separate him for misconduct – abuse of illegal drugs, with a general, under honorable conditions characterization of service. The applicant was informed of his rights, including his right to consult with counsel and submit statements in his behalf. 13. On 27 April 2006, he acknowledged receipt of the notification from his immediate commander. On 28 April 2006, he acknowledged: * he was afforded the opportunity to consult with appointed counsel and accepted the opportunity * he was advised by his consulting counsel of the basis for the contemplated action to separate him for the commission of a serious offense under Army Regulation 635-200, chapter 14 * he acknowledged submitting a statement in his own behalf, but it is not in his available records for review * he understood he may expect to encounter substantial prejudice in civilian life if his service were characterized as general, under honorable conditions and that he may be ineligible for many or all benefits as a veteran 14. On 1 May 2006, his separation under Army Regulation 635-200, chapter 14 was approved and it was directed his service would be characterized as general, under honorable conditions. 15. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 14 for misconduct (drug abuse) on 1 May 2006, after 4 years, 2 months, and 19 days of net active service, which was characterized as general, under honorable conditions. Among his decorations and badges awarded or authorized is the Combat Action Badge. Item 18 (Remarks) shows he was retained in service 443 days for the convenience of the Government under Title 10, USC, section 12305, the legal premise for involuntary extension under the Army Stop-Loss policy. 16. His available service records 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 17. On 24 August 2007, the applicant applied to the Army Discharge Review Board (ADRB), requesting an upgrade of his discharge to honorable, stating his illegal drug use was a form of self-medication to manage his PTSD. On 26 October 2007, the ADRB voted to grant his request, having found his characterization of service to have been improper, but the narrative reason for discharge was both proper and equitable. 18. The applicant’s records contain a reissued DD Form 214, covering his period of service from 13 February 2002 through 1 May 2006, wherein his character of service is reflected as honorable, and his narrative reason for separation reflects misconduct (drug abuse). 19. On an unknown date, the applicant applied to the U.S. Army Human Resources Command, Awards and Decorations Branch, requesting award of the Purple Heart. A DD Form 215, dated 13 April 2012, shows his DD Form 214 was corrected to reflect award of the Purple Heart. 20. The applicant provided a copy of what appears to be a partial SSA benefits statement. The beneficiary is listed as W____ and states he can expect a benefit of $539.00 per month effective 3 January 2013. 21. A VA Rating Decision, dated 4 January 2016, shows the applicant was granted a granted a combined service-connected disability rating of 90 percent effective 31 August 2009, with individual unemployability, for the following conditions: * PTSD with major depressive disorder, 50 percent effective 2 May 2006 * residuals of a TBI, 40 percent effective 31 August 2009 * migraine headaches, 30 percent effective 2 May 2006 * bilateral plantar fasciitis, 10 percent effective 2 May 2006 * irritable bowel syndrome, 10 percent effective 6 June 2007 * lumbosacral strain superimposed on lumbar degenerative disc disease L1-2 and L2-3, 10 percent effective 23 July 2007 * cervical strain superimposed on cervical degenerative disc disease C4-5 and C5-6, 10 percent from 6 October 2014 22. On 30 May 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion, stating: a. There is no evidence in the available medical records which indicates any of the applicant’s medical or behavioral health conditions interfered with effective duty performance or necessitated duty limitations as evidenced by a permanent physical profile or recurrent or extended hospitalizations. There is no indication in the applicants available records that he failed to meet military retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). b. Review of the applicant’s military medical records indicates he was diagnosed with and treated for the following conditions while he was on active duty: anxiety disorder not otherwise specified, depression, lumbago, nicotine dependence, patellofemoral syndrome, and plantar fasciitis. However, there is no indication in his records that these conditions were unfitting as there is no evidence to show he had a permanent physical profile, a diagnosis of a disabling medical condition that failed medical retention standards, evidence he was unable to perform the duties required of his MOS for grade, or a medical examination that deemed entry into the disability system was warranted. c. A review of the applicant’s available records indicated he did not suffer from an unfitting psychiatric or medical condition while on active duty and he met military psychiatric and medical standards. Therefore a referral of his records to the Integrated Disability Evaluation System for consideration of a medical discharge or retirement is not warranted. The applicant’s medical conditions were duly considered during his separation processing. 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. 23. The applicant was provided a copy of the advisory opinion on 6 June 2019 and given an opportunity to submit comments, but he did not respond. 24. 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. 25. 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. 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 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. c. 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. d. 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and a medical advisory opinion. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board considered the applicant’s in-service medical documents, his VA ratings and the review and conclusions of the medical advising official. The Board concurred with the conclusion of the advising official, finding insufficient evidence to conclude that the applicant had a medical condition that failed to meet medical retention standards at the time of his separation. Based on a preponderance of evidence, the Board determined that the reason for the applicant’s 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 :XXX :XXX :XXX 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, 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 Army Board for Correction of Military Records (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. 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 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. 5. Title 38, U.S. Code, sections 1110 and 1131, permit 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) AR20180016482 9 1