ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 March 2021 DOCKET NUMBER: AR20200002004 APPLICANT REQUESTS: in effect, his reason for separation be changed to physical disability due to post-traumatic stress disorder (PTSD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Separation) * 6-page Personal Statement * Reference Documents from the Office of Medical History pertaining to Military Psychiatry 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. In a 6-page personal statement the applicant outlines his life prior to military service and his military service and states, in part: a. He is a Korean Era War veteran and does not have any combat service. His military records were destroyed in a 1973 fire. He was released from service after successfully completing his draft period. His DD Form 214 indicates he lost 3 days. He did not return from his scheduled leave on time. The army attempted and failed to involuntarily separate him as being unfit for duty due to in-service physical and psychiatric injuries. His separation code indicates he was released because of desertion. His DD form 214 further shows he lost 3 days without a trial. His selective service records show he was released to the Reserves because he successfully completed draft service. b. He attempted to get conscientious objector status and became a target during basic training and afterwards because his file had been marks. He was threatened, harassed and given extra duty. He has PTSD and major depression that has taken him years to deal with. He has been denied Department of Veteran Affairs (VA) benefits because he can't prove in-service events because his records were destroyed. According to the Army site code, his separation falls under section 8. Section 8 is not a personality disorder discharged. Under the new personality discharge, he would have been given certain protections and a medical discharge. His DD Form 214 does not correctly show the law as applied to the facts. It is unfair and unjust that he completed his draft service in a dangerous military occupational specialty and then have his service tarnished by a mental health disqualifying diagnosis which occurred in service. c. He is relying on the Hagel memorandum, which says he can get his discharge upgraded because in the 1950's PTSD was not a recognized disorder. He had symptoms of PTSD to include depression, insomnia, nightmares and night terrors. He avoided situation that reminded him of events in the Army because it would trigger depression, melancholy and anxiety. He self-medicated for years. His doctors never asked him about military service and the disabilities related to it. He can't provide his civilian medical records because the custodian of the records legally destroyed them after the mandatory holding period expired. When he was injured in service, he did not know how serious his were or would become. He was happy to make it home. He thought once he was home everything would be alright. He can't supply statements from fellow service member because most of them have passed away. The applicant's complete statement is available for the board's review and consideration. 3. The applicant's records are not available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that his records were lost or destroyed in that fire. However, there were sufficient documents provided by the applicant for the Board to conduct a fair and impartial review of this case. 4. The applicant's DD Form 214 shows he was inducted into the Army of the United States on 6 March 1953. He was honorably released to the Army Reserves on 8 March 1955 under the provisions of Army Regulation 615-360 with SPN 38 and Special Regulation 615-363-5. Item 38 (Remarks) shows, in part, he had 3 lost days. He completed 2 years of total net service. 5. The applicant's medical records are not available for review and he does not provide any evidence showing 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. 6. Army Regulation 615-360 in effect at the time, set forth the general provisions governing the discharge of enlisted personnel. Section 16.1 (Reason and Authority) provides the reason and authority for separation for individuals renders who renders himself unable for more than 1 day would be listed as "AR 615-360 SPN 38." 7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. 8. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 9. 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. 10. Title 38, United States Code, 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. 11. 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. 12. MEDICAL REVIEW: a. The applicant is applying to the Army Board for Correction of Military Records (ABCMR) to in effect, his reason for separation be changed to physical disability due to post-traumatic stress disorder (PTSD). The applicant states that it is unfair and unjust that he completed his draft service in a dangerous military occupational specialty and then have his service tarnished by a mental health disqualifying diagnosis which occurred in service. Removal of SPN Code 38 from Line 8 of my enclosed DD 214. Change in narrative reason for discharge to Medical because of PTSD. b. See Attached Personal Statement. c. The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Separation) * 6-page Personal Statement * Reference Documents from the Office of Medical History pertaining to Military Psychiatry d. VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed. e. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were not reviewed as they were not in use at the time of service. f. The ABCMR Record of Proceedings details the applicant’s military service and the circumstances of the case. The ROP indicates that the applicant entered military service on 6 MAR 1953 and was discharged on 8 MAR 1955 with an honorable discharge to the Army Reserves. g. The applicant was honorably discharged on 8 MAR 1955. h. The applicant is relying on the Hagel memorandum, which says he can get his discharge upgraded because in the 1950's PTSD was not a recognized disorder. He had symptoms of PTSD to include depression, insomnia, nightmares and night terrors. He avoided situation that reminded him of events in the Army because it would trigger depression, melancholy and anxiety. He self-medicated for years. His doctors never asked him about military service and the disabilities related to it. He can't provide his civilian medical records because the custodian of the records legally destroyed them after the mandatory holding period expired. When he was injured in service, he did not know how serious his were or would become. He was happy to make it home. He thought once he was home everything would be alright. He can't supply statements from fellow service member because most of them have passed away. i. The applicant's records are not available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that his records were lost or destroyed in that fire. The applicant's medical records are not available for review and he does not provide any evidence showing 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. j. 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. k. Title 38, United States Code, 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. 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. l. JLV does not contain any Behavioral Health diagnoses. The applicant does submit a self-statement describing his behavioral health symptoms which include depression, insomnia, nightmares and night terrors. He reports he attempted to get conscientious objector status and became a target during basic training and afterwards because his file had been marks. He was threatened, harassed and given extra duty. m. With regards to military medical disability/retirement, the Army has a process that begins with entry into the disability evaluation system (DES). Referral to this system requires a designation of unfitness before an individual can be separated from the military because of an injury or medical condition. In the applicant’s case, there is no indication that he had an unfitting behavioral health condition while on active duty as evidenced by the lack of : 1) a permanent physical profile for physical or psychological impairment; 2) a diagnosis of a behavioral health condition that failed medical retention standards; 3) a diagnosis of a disabling behavioral health condition that rendered the applicant unable to perform the duties required of his MOS or military grade; 4) a medical examination that warranted his entry into the disability evaluation system n. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, there is documentation to support a behavioral health condition during his military service. There is no documentation to suggest he did not meet retention standards at the time of his discharge. It is likely his behavioral health symptoms led to his avoidant behavior. Given the stigma associated with “desertion”, recommend change in his narrative reason to Secretarial Authority and change his separation code. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined partial relief was warranted. The Board considered the applicant's statement, his available record of service, the findings and recommendation of the medical advising official, the character of service he received upon separation and published DoD guidance for consideration of discharge upgrade requests. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded that changing the applicant’s narrative reason to physical disability was not warranted. However, based on a preponderance of evidence, the Board determined that changing the applicant's record to reflect Secretarial Authority with separation code to JFF was appropriate was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XX :XXX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing: * Narrative Reason for Separation as “Secretarial Authority” * Separation Code as “JFF” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing the narrative reason for separation to physical disability. X CHAIRPERSON 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 615-360 in effect at the time, set forth the general provisions governing the discharge of enlisted personnel. Section 16.1 (Reason and Authority) provides the reason and authority for separation for individuals renders who renders himself unable for more than 1 day would be listed as "AR 615-360 SPN 38." 3. Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. 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. b. This regulation defines "physically unfit" as unfitness due to physical disability when the unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. 4. Title 38 U.S. Code 1110 (General - Basic Entitlement): 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. 5. Title 38 U.S. Code 1131 (Peacetime Disability Compensation - Basic Entitlement): 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. 6. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS//