IN THE CASE OF: BOARD DATE: 31 August 2020 DOCKET NUMBER: AR20190014878 APPLICANT REQUESTS: amendment of his narrative reason for separation to physical disability discharge. 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) * 2 DD Form 3822 (Report of Mental Status Evaluation) * Separation Memorandum * Department of Veteran Affairs (VA) letter 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 part, he was honorably discharged on 4 April 2016. The reason for his discharge was listed as unsatisfactory performance. He would like his DD Form 214 to be amended to show he was discharged was due to a service- connected mental health disability. Records show the reason for his discharge was due to being diagnosed with anxiety, depression, and alcohol use disorder. The diagnosis was given after he went to the hospital to seek help for suicide intervention. After being released from the hospital, his chain of command decided to discharge him based on unsatisfactory performance instead of medical reasons in order to expedite his separation. He only had one company grade article 15 and never received a negative counseling statement. He had previously been in the sniper section and was a proud paratrooper. He was happy to just take the honorable discharge they were offering him in order to get out of the situation that had made him want to kill himself. He does not believe his narrative reason for separation is correct. Changing this to the right thing and it would greatly help his employability and life. 3. The applicant enlisted into the Regular Army on 5 August 2014. 4. On 5 January 2015, the applicant accepted non-judicial punishment for being absent without authority, violating a lawful regulation, and making a false statement. 5. A DA Form 3822, dated 14 January 2016, 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). a. He was diagnosed with adjustment disorder with anxiety and alcohol use disorder. b. He required temporary duty limitations and would likely require behavioral health treatment to be restored to full duty. He was given appointment for safety check-ups and medication management. He was also referred to the Army Substance Abuse Program (ASAP). c. He was given a temporary S3 rating for 90 days. His screen for post-traumatic stress disorder (PTSD) and traumatic brain injury was negative. d. He was found to be able to distinguish right from wrong, had the mental capacity to understand and participate in administrative proceedings, and met retention requirements and did not qualify for a medical evaluation board. 6. A DA Form 3822, dated 15 January 2015, shows the applicant underwent a mental status evaluation on the date of the form for the purpose of a safety check-up. a. He was diagnosed with adjustment disorder with anxiety and alcohol use disorder. b. He required temporary duty limitations and would likely require behavioral health treatment to be restored to full duty. He was given appointment for safety check-ups and medication management. He was also referred to the Army Substance Abuse Program (ASAP). c. He was given a temporary S3 rating for 90 days. His screen for post-traumatic stress disorder (PTSD) and traumatic brain injury was negative. d. The form further shows he denied any symptoms of sufficient severity to warrant disposition through military medical channels. He was determined to be mentally responsible, can distinguish right from wrong, and possesses sufficient mental capacity to understand and participate intelligently as a respondent in any administrative proceedings. This soldier is psychologically cleared for any administrative action deemed appropriate by the separation authority. 7. On an unspecified date, the applicant was notified by his immediate commander of his initiation of action to separate him under the provisions of Army Regulation 635-200, chapter 13 due to a diagnosis of adjustment disorder with anxiety following suicidal ideations 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. On 1 March 2016, the applicant 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 2 Mach 2016, the appropriate 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 4 April 2016 after 1 year and 8 months of net active service this period. His narrative reason for separation is unsatisfactory performance. 11. The applicant provided a letter from the VA, dated 8 October 2019, which shows the applicant’s combined disability rating is 70 percent for the following service- connected disabilities. The letter does not list his disabilities. 12. On 11 October 2018, the applicant enlisted into the Army National Guard. 13. Based on the applicant's contention the Army Review Board Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 14. 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. 15. 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 16. 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. 17. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 18. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 19. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. MEDICAL REVIEW: 1. The Agency psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation and his military separation packet. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s time in service. No hard copy military medical records or civilian medical documentation was provided for review. The VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed as well. 2. The applicant received an Article 15 on 08 Jan 2016 for being absent from the unit from 16 Dec 2015 – 18 Dec 2015. A Mental Health Evaluation was conducted on 14 Jan 2016 due to some reported suicidal ideation. He was diagnosed with an Adjustment Disorder with Anxiety and Alcohol Use Disorder. Applicant denied suicidal ideation at the time of the evaluation. On 28 Jan 2016, his Company Commander wrote a Letter of Intent to Separate from the Army due to the presence of an Adjustment Disorder with Anxiety. 3. The VA electronic record (JLV) identified Alcohol Abuse, Uncomplicated on 18 Feb 2020. There was an absence of any clinical notes related to behavioral health issues, as well as no indication of any service connected disabilities. A letter, however, from the Department of Veterans Affairs, Washington DC (08 Oct 2019) included in the applicant’s supporting documents did identify some disabilities. It indicated applicant was awarded a 70 percent combined service connected evaluation. The rated disabilities (21 Aug 2019) noted 70 percent Major Depressive Disorder, Recurrent, Severe with Anxiety Distress and 10 percent for tinnitus 4. Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist that that the applicant has some mitigating behavioral health conditions, most notably anxiety and depressive symptoms, as well as alcohol abuse. There is sufficient evidence to support the applicant’s contention that a mental health disability contributed significantly to his Unsatisfactory Performance discharge. In point of fact, the stated rationale for the discharge was the presence of an Adjustment Disorder with Anxiety without mention of any other misconduct. Clearly the identified behavioral health concerns from the Mental Health Evaluation in the Army and the subsequent service-connected disability carry more weight than the identified misconduct that led to his discharge, even if the AWOL incident was included. BOARD DISCUSSION: The Board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and the Medical Advisory Opinion. The Board considered the applicant’s claim that the reason for his discharge was due to being diagnosed with anxiety, depression, and alcohol use. The Board disagreed with the Medical Advisory opinion recommendation that the applicant’s Behavioral Health conditions mitigate the narrative reason for the applicant’s discharge. The Board agreed that Behavioral Health appointment notes prior to the AWOL are void of indications of suicidal ideations. Furthermore, the Board found that the applicant’s AWOL was aggravated by his lying to his chain of command and breaking the travel restriction, both premeditated actions. Therefore, the Board found insufficient evidence to amend the narrative reason for separation. 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, 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. 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 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. 5. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 6. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190014878 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1