ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 August 2019 DOCKET NUMBER: AR20180016540 APPLICANT REQUESTS: in effect, correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired or separated from active service vice honorably discharged. Additionally, he requests correction to the spelling of his first and last names on his DD Form 214. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Social Security Card * New Jersey Commercial Driver’s License * Medical card * United States Government Passport * Identification Card from "T.W.I.C." FACTS: 1. The applicant did not file within the 3 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, in effect, he has physical ailments due to heavy lifting, bending, and sitting for long hours. He also has mental illnesses or psychological disabilities including distress, anxiety and clinical depression. He requires weekly therapy. Additionally, his first and last names shown on his DD Form 214 are incorrectly spelled. His first name is spelled XXxxxX not XXxxxX and his last name is spelled XXXxxx not XXXxxx. He was unaware of his potential Veterans’ benefits until recently. He provides numerous current forms of government identification cards in support of his application showing his first name is spelled XXXxxxX and his last name is spelled XXXxxx. 3. The applicant enlisted in the U.S. Army Reserve in its delayed entry program on 13 June 1996. In the process of enlisting he provided his City of XXXXX, XXXXXX birth certificate showing the spelling of his first name as XXXuxxxX X. XXXxxx. He also provided his social security card showing the spelling of his name as XXXxxXX XXXxxx. In effect, his first and last names were spelled differently on his birth certificate and his social security card. 4. In the process of enlisting the applicant, a Government representative completed DD Form 1966-1 (Record of Military Processing – Armed Forces of the United States) showing he enlisted under the name “XXXxxxXX XXyxxx.” The applicant signed this form on or about 3 June 1996 certifying the information contained on the form was true and correct to the best of his knowledge. Additional military forms show the spelling of his first and last name as shown on his social security card: * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) * DD Form 1966/2 * DD Form 1966/3 * DD Form 1966/4 * DA Form 3286-59 (Statement for Enlistment – United Stated Army Enlistment Program, U.S. Army Delayed Enlistment Program) * DA Form 3286-63 (Statement for Enlistment – United States Army Training Enlistment Program) * DA Form 3286-67 (Statement of Understanding (Army Policy)) * Standard Form 88 (Report of Medical Examination) 5. On 2 October 1996 he enlisted in the Regular Army. He signed he first and last names as shown on his social security card. A review of his entrance medical examination shows he was fully qualified to enlist in the Regular Army with no profile limitations or ratings under the provisions of Army Regulation 40-501 (Standards of Medical Fitness). 6. He completed basic and advanced individual training. He was assigned to his first permanent unit, Company B, 27th Main Support Battalion, 1st Calvary Division, Fort Hood, Texas. 7. On 28 December 1997, his immediate commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5, because of a personality disorder with an Axis 1 diagnosis of adjustment disorder with depressed mood; Axis II personality disorder not otherwise specified antisocial, passive aggressive, narcissistic tendencies; and Axis III flexural overdose. He recommended an honorable discharge and informed him of his rights. The applicant was evaluated and diagnosed at the 1st Calvary Division Mental Health Section. 8. On 30 December 1997, he acknowledged having been advised by consulting counsel of the basis for the contemplated action to separate him for personality disorder under the provisions of Army Regulation 635-200, paragraph 5-13. He consulted with appointed counsel and did not submit statements in his own behalf. 9. His battalion commander recommended approval of the discharge action and the separation authority directed his honorable discharge under the provisions of Army Regulation 635-200, paragraph 5-13, due to personality disorder. 10. His DD Form 214 shows he was honorably discharged from active duty on 1 April 1998, after 1 year and 6 months of net active service due to personality disorder under the provisions of Army Regulation 635-200, paragraph 5-13. The spelling of his first and last names is as shown on his DD Form 4. 11. On 17 June 2019, the Army Review Boards Agency (ARBA) staff psychiatrist rendered an advisory opinion as required by law. She reviewed the applicant’s Department of Veterans Affairs (VA) medical records through the Joint Legacy Viewer. On 15 October 2015 he underwent a VA Mental Disorder Compensation and Pension Examination which established the fact he did not have a mental disorder. Within the report he was quoted as saying, in effect, he did whatever it took to get out of the Army to include fighting. She states, "The patient reports that he hated the military and did what he could to be discharged." She concluded by saying based on the available information, there is no indication he suffered from an unfitting medical or psychiatric condition while in the Regular Army that would require a referral to the medical disability evaluation system. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. On 8 July 2019, the applicant was mailed a copy of the medical advisory for his review and rebuttal. He was allowed 30 days to submit a rebuttal statement. He did not respond. 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, documents showing his name and signature were consistent throughout his service and as shown on his SS Card, but different from that on his birth certificate. The Board considered his statement and medical evidence and the reason for his separation. The Board considered the conclusion of the medical advising official that states there is no available evidence to show the applicant had any condition that failed medical retention standards at the time of separation. Based on a preponderance of evidence, the Board determined that the applicant’s name and reason for separation as shown on his DD Form 214 were not in error or unjust. 2. The Board advises the applicant that this decision will be placed in his official military records to clarify the difference between the name he used in service and the name he uses today. 3. 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, USC, 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 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. 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 a medical evaluation board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any 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 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 physical evaluation board (PEB) is an administrative board 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. 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. 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. 5. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-13 states a service member may be separated for personality disorder not amounting to disability that interferes with assignment to or performance of duty when so diagnosed by a medical authority. A Soldier being separated under this section will be awarded a character of service of honorable, under honorable conditions, or an entry-level separation. b. Paragraph 5-17 states a service member may be separated for other designated physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. A Soldier being separated under this section will be awarded a character of service of honorable, under honorable conditions, or an entry- level separation. 6. Army Regulation 635-5 (Separation Documents) in effect at the time prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. It stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty, and provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. 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. ABCMR Record of Proceedings (cont) AR20180016540 5 1