BOARD DATE: 7 February 2020 DOCKET NUMBER: AR20190001501 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge (GD) and his rank to be restored to private first class (PFC). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Medical documents * Letter from the Department of Veterans Affairs (VA) * Record of Naval Reserve Service 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, in effect, he joined the Unites States Navy Reserve (USNR) in 1984; however, they would not allow him to enter active duty after high school. He eventually enlisted in the Army as PFC. Twelve days after enlisting he fell 24 feet and injured his back, hip, and head. He suffered with no help. He requested to be released in order to get help. He was granted a GD. Shortly after his discharge, he was granted service connected disability for his head, hip, and back. He is currently 100 percent permanently disabled. He has not worked since his release from active duty. He feels loyalty to his country. He was granted 70 percent service-connected disability for traumatic brain injury (TBI) and 50 percent for headaches. He had been diagnosed with post-traumatic stress disorder (PTSD); however, he had not filed a claim for it. While on active duty he was given medication for pain which caused him to not to wake up and he was given non-judicial punishment (NJP) for being drunk on duty. He was reduced in rank to private/E-2. He would like to have his rank restored to PFC. 3. The applicant enlisted in the Army on 23 October 1986 as a PFC. He completed advanced individual training AIT) and was awarded military occupational specialty (MOS) 36C (Wire System Installer). 4. The applicant accepted NJP on 18 August 1987, for failing to obey a lawful order. His punishment consisted of reduction to private/E-2, extra duty for 14 days, and restriction for 14 days. 5. The applicant's complete separation packet is not available for review; however, on 8 October 1987, he acknowledged notification of his immediate commander’s recommendation for his administrative separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance. 6. He acknowledged statements in his own behalf were submitted; however, his statement is not in his available records for review. He requested consulting counsel and acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge, under honorable conditions. 7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, on 21 October 1987, due to unsatisfactory performance. He completed 1 month and 29 days of net active service this period. He was awarded the Army Service Ribbon. 8. His record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or 9. On 24 September 1990, the Army Discharge Review Board denied his request for an upgrade of his GD. 10. He provides one page of a VA letter, dated 29 May 2018, which shows his combined evaluation effective 22 October 1987, was 50 percent. 11. On 23 October 2019, the Army Review Boards Agency (ARBA) medical advisor/psychologist provided an advisory opinion. The ARBA medical advisor/psychologist stated, in part: a. The National Archives and Records Administration files note the applicant was injured in AIT, 12 November 1987, but released back to duty. In February 1987, he was treated for a stress fracture; however completed AIT. There is no indication Mr. was on a profile or recycled due to physical limitations; records suggest he was fit for duty and completed AIT. While in Korea, April 1987, he was sent to Ft. Lewis and placed in medical holding pending surgery. He had surgery in May 1987 and released back to duty in July 1987. b. The medical advisor concluded although the applicant submitted a non-VA appointment note listing PTSD, the note is void of collateral information, psychological assessment, or documentation to substantiate the diagnosis. Moreover, the VA provider the applicant saw afterward did not diagnose the condition and raised concerns regarding the applicant's self-report. In summary, the applicant's basis for separation is not medically mitigated. Rather, it is more likely than not a characterological disorder fueled his misconduct which is supported by pre- and post- enlistment misconduct and a prior diagnosis of Antisocial Personality Disorder. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. The applicant was provided a copy of the advisory opinion and given an opportunity to submit comments. He responded on 1 November 2019, stating, in part: a. He has read the advisory opinion and disagrees with it. This upgrade means a lot to him and he has been as truthful with all information as he can remember. He has not tried to hide anything and have told all to the best of his memory. He does not remember applying to the board before. He does not know why his records would say he was fit for duty or that he fought to stay in service. From the day he fell he was on profile. He was offered a medical discharge the day after or the next after his fall. The Doctor asked him his plans for the service and he said he planned on retiring at age 37. b. When he asked to leave they had him doing workbooks because that's what he wanted to do and he feels it was only a delay tactic. He could never pass the physical fitness test and it was waived. So in reality, he never completed advance individual training. The doctor who offered the medical discharge told him it would ruin his career plans and the pain would be gone in a couple of weeks. He was sent to Korea on profile and it irritated the command at his next duty station. He was on profile the entire time in Korea. While he was at Fort Lewis he was again on profile the entire time. He now remembers being in trouble for being absent for duty; however, he was at sick call and does not understand why the record does not show it. Just the fact he was put on amitriptyline for pain shows there was a problem. He was in incredible pain from the multi screw fixation they put in his hip. The muscle would catch and he was going crazy. By the time VA took the screws out the muscle was torn up. Maybe VA records could confirm this and help his claim. c. He requested release due to his health issues. He was informed he was going back to Korea and he went nuts. The screws in his hip catching the muscle would have made that miserable. If it was not for the shrink they were sending him to, things could have been much worse. She was the one who made his release happen. He was willing to sign anything to get out. He needed help and healing. He spends many hours a day on his back. He will be having a spinal cord stimulator (SCS) installed as a final option for chronic pain. He has been diagnosed with Inner Costal Nerve damage which is a pain only 7 percent of people with back pain suffers from. It is the nerves in the ribs being inflamed. It is way worse now than it was years ago. He has been complaining about being cut for years and now he finally has an answer. d. The damage is from fall he suffered in AIT. He should have taken the medical out, but he wanted to see the world. As far as PTSD, he lives in fear of his back locking up and telephone poles causes him anxiety. He has nightmares and do not sleep. The attention deficit hyperactivity disorder (ADHD) diagnoses is evident of PTSD and TBI combined. The last person at VA did not tell him to return. There was a provider there he did not like so they set him up with someone else. He asked if they could make the anxiety and nightmares go away and was told no. He was only there because the place doing the SCS required him to have counseling before taking the trial of the SCS. He was told he needed to deal with his PTSD and anxiety issues before he could be recommended for the SCS. e. He asked the person he saw at VA if seeing them was dependent on the SCS and he was told no. The fact they could not make his nightmares go away nor could they make the telephone poles go away, he decided it was not worth it to go back. The last guy he saw would tell him things he did not like. He was not the right person for him. Every time he saw him he would get the most horrible migraine. He just did not make him feel right and he always left feeling worse. He has had many problems since his fall which may or may not be related to his issues. He enlisted to serve his country. f. He responded again on 6 November 2019, stating he does not believe a physical therapist moving his legs around counts as full range of motion. He found an x-ray in his record of the screws; however, it was not of the screws sticking out. The VA wanted to fuse his back since his release but he can't have it done because his bones are too brittle. He was informed he had osteopenia as the result of his fall. The applicant's complete rebuttal statements are available for the Board's review and consideration. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. 14. Army Regulation 635-40 establishes the Army PDES 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 or her office, grade, rank, or rating. 15. In reaching its determination, the Board can consider the applicant's petition, his statements, and his service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the findings in the medical advisory and a lack of corroborating evidence to the applicant’s statements, the Board concluded there was insufficient evidence of an error or injustice which would warrant changing the characterization of service or restoring the applicant’s rank, as requested. 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. Army Regulation 635-200 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. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. 3. 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. 4. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. 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. 5. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190001501 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1