IN THE CASE OF: BOARD DATE: 15 February 2022 DOCKET NUMBER: AR20200008928 APPLICANT REQUESTS: through counsel requests, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows: * Block 4a, 4b (Grade, Rate or Rank) (Pay Grade) his rank be restored from private first class/PFC/E-3 to specialist/SPC/E-4 * Block 25 (Separation Code) JFV to a separation code that corresponds with medical retirement * Block 26 (Separation Authority) Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Paragraph 5-17, Other physical or mental conditions * Block 28 (Narrative Reason for Separation) from "Condition, not a Disability" to "Medical Retirement” or “Secretarial Authority” * Remove all references of a personality disorder from his personnel records * a video/telephone appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Attorney Brief * Exhibits in Support of Application: * Exhibit A: Confidential Psychological Evaluation Dr. J__O__ * Exhibit B: Medical Record Dr. L__O__ * Exhibit C: Orders 035-9XXX * Exhibit D: Orders 157-XXX * Exhibit E: Psychiatric Care Template P__S__ * Exhibit F: Health Record Nurse J__A__ * Exhibit G: Intensive Outpatient: Intake * Exhibit H: Medical Record Dr. D__O__ * Exhibit I: DA form 2627 (Record of Proceedings Under Article 15 of the Uniform Code of Military Justice (UCMJ) * Exhibit J: DA Form 3622-R (Report of Mental Status Evaluation) * Exhibit K: DA Form 4856 (Developmental Counseling Form) * Exhibit L: DA Form 3622-R (Report of Mental Status Evaluation) * Exhibit M: DA Form 4856 (Developmental Counseling Form) * Exhibit N: Memorandum, Subject: Separation Under Army Regulation (AR) 635- 200 (Active Duty Enlisted Administrative Separations), Chapter 5 * Exhibit O: Medical Care M__A__ * Exhibit P: Medical Record Dr. B__C__ * Exhibit Q, R, T: Medical Records * Exhibit S: DD Form 214 (Certificate of Release or Discharge from Active Duty) * Exhibit U: Veterans Affairs Progress Notes * Exhibit V: Dr. M__C__ Letter * Exhibit W: VA Outpatient Medications * Exhibit X, AA and BB: Department of Veterans Affairs Rating Decision Letters * Exhibit Y: Department of Veterans Affairs Deferred Rating Letter * Exhibit Z: Dr. D__B__ 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 Army Board for Correction of Military Records (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 through his attorney states he be provided with a medical retirement and that all references of a personality disorder “or a condition not a disability” be removed from his military personnel records. The applicant requests that his rank be restored form private first class to specialist. 3. Counsel states the applicant should have been provided Disability Evaluation System (DES) processing for his Post Traumatic Stress Disorder (“PTSD”), Anxiety Disorder, Non Specific, and/or Major Depressive Disorder (“MDD”) rather than being administratively separated with a personality disorder pursuant to Army Regulation 635- 200 (Active Duty Enlisted Administrative Separations), Chapter 5-17. Had he been granted DES processing he would have properly received retirement benefits, which he should be provided now. Additionally, his rank would not have been reduced from SPC to PFC. As the Army also erred in separating him for a personality disorder, all references to “condition, not a disability” should be removed from his DD Form 214 and military documents. The relief requested is that his records be corrected to reflect his PTSD made him unfit for military service as his PTSD was at least 30% disability under the VA schedule of rating Disabilities (VASRD), which should have been cause for referral into the DES and would have entitled him to medical retirement under Title 10 USC 1201, and his rank be restored to SPC/E-4 and finally, even if medical retirement is not provided, all references to personality disorder should be removed from his DD Form 214 and other military personnel documents including changing the narrative reason for separation from “Condition, not a disability to “Disability Retirement” or “Secretarial Authority”. 4. Counsel provides: a. Exhibits A-W and Z: Various military and civilian medical records. b. Exhibit X, Y and AA and BB: He provides a Department of Veterans Affairs Rating Decision: (1) Exhibit X: dated 6 November 2006, shows the VA awarded him service- connected disability at a combined service-connected evaluation of 30% for PTSD with depression, lumbosacral degenerative joint disease 10%; cervical strain 10%; cluster headaches 10%; tinnitus 10%; residuals of left shoulder injury 10%; right gluteal scar 0% and superior right knee scar 0%. (2) Exhibit Y: 27 April 2007, shows the VA awarded him a temporary evaluation of 100% effective 21 September 2006 because of hospitalization over 21 days. An evaluation of 30% from 1 December 2006. (3) Exhibit AA: dated 14 February 2008, shows the VA awarded him service- connected disability at a combined service-connected evaluation for PTSD with depression, a temporary evaluation of 100% because of hospitalization over 21 days. This 100% evaluation is effective from 7 June 2007 to 1 August 2007. An evaluation of 30% effective 1 August 2007. Lumbosacral degenerative joint disease, 10% continued. (4) Exhibit BB: dated 7 May 2010, shows the VA awarded him entitlement to individual employability effective 17 May 2006. PTSD to include complication s of major depressive disorder, panic attacks, and a sleep disorder was increased to 70%; hearing loss 20%; headaches, cervical strain, lumbosacral degenerative joint disease and gastroesophageal reflux disorder were continued. 5. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 12 February 2001. He held military occupational specialty 11B (Infantryman). b. Permanent Order 115-XXX, dated 25 April 2002, Headquarters, 3rd Brigade, 2nd Infantry Division, Fort Lewis, WA, awarded him the Infantryman Badge. c. He served in Iraq from 14 November 2003 to 2 November 2004. d. Permanent Orders 035-XXX, dated 4 February 2004, Headquarters, 101st Airborne Division, Fort Campbell, KY, awarded him the Combat Infantryman Badge. e. Order 157-XXX, dated 5 June 2004, Task Force Bravo Detachment, Mosul, Iraq, awarded him the Army Good Conduct Medal (1st Award). f. He reenlisted in the Regular Army on 7 July 2004. He was assigned to A Company, 5th Brigade, 20th Infantry Battalion, 2nd Infantry Division, Mosul, Iraq. g. He accepted non judicial punishment under Article 15 under the UCMJ, at Fort Lewis, on 17 August 2005, for without authority, failing to go at the time prescribed to his appointed place of duty on three occasions. His punishment consisted of reduction to PFC, forfeiture of $383.00 pay, suspended, extra duty and an oral admonition. h. On 26 January, his DA Form 4836 (Developmental Counseling Form) shows he received initial developmental counseling. i. On 8 February 2006, the applicant underwent a mental status evaluation at Madigan Army Medical Center (MAMC) Behavioral Health Clinic performed by Clinical Psychiatrist P__A__. He was seen as an emergency walk-in because of concerns about emotional difficulties and dangerousness. The evaluation found he was not suitable for continued service due to significant emotional disturbance associated with ongoing multiple depressive and anxious symptoms. The cause of the emotional disturbance is Anxiety Disorder, Depression, and Post Combat Stress, chronic, severe. (1) The emotional instability is at a level that is currently impairing his occupational functioning capacity and will not likely change significantly as long as he remains in the military, and is likely to worsen on a deployment. The psychiatric condition does not rise to the level of a Medical Board; therefore, it is recommended that the applicant be administratively separated in accordance with (IAW) chapter 5-17. The anxiety symptoms include a pervasive sense of being overwhelmed, shaking, trembling, dizziness, and feelings of unreality. The post combat and depressive symptoms include depressed mood, sleep disturbance, increased irritability, feelings of helplessness, and hopelessness, loss of interest and motivation, and nightmares. The applicant currently denies that he is planning to harm himself; however, he is at risk for developing suicidal ideation given the high degree of hopelessness and panic he experiences. He denies homicidal ideation. He has been seen by multiple mental health providers and received individual therapy, numerous group therapies and medication, for more than a year, without significant resolution to his symptoms. His prognosis, given the service available, is poor. The noted emotional disturbance will not likely respond to command efforts at rehabilitation (such as transfer, disciplinary action, or reclassification) or to any treatment methods currently available in the military mental health system. For these reasons, the chain of command should immediately begin the administrative process for a chapter 5-17. (2) The Diagnosis(es) is/are: Axis I: Anxiety Disorder, Not Otherwise Specified (NOS), Axis I: Major Depressive Disorder; Axis I: Post Combat Stress; Axis: Deferred. Proposed Treatments: He would continue to have follow-up in the nearest Behavioral Health Clinic during the chapter process. Precautions: No precautions recommended. The applicant has a low risk of dangerousness. Fitness and Suitability for Continued Service: Process for Expeditious separation IAW chapter 5-17, AR 635-200. This Soldier’s emotional disorder will not respond to Command efforts at rehabilitation (such as transfer, disciplinary action, or reclassification) or to any treatment methods currently available in the military mental health facility. j. On 10 February 2006, he was counseled by sergeant/SGT M__, for Notification of intent to chapter him IAW chapter 5-17. The reason was the results of his evaluation on 8 February 2006 at MAMC Behavioral Health Clinic. The evaluation found he was not suitable for continued service due to significant emotional disturbance associated with ongoing multiple depressive and anxious symptoms. The cause of the emotional disturbance is Anxiety Disorder, Depression, and Post Combat Stress. These emotional disturbances are not likely to respond to Command efforts at rehabilitation (such as transfer, disciplinary action, or reclassification) or to any treatment methods currently available in the military mental health system. Therefore, due to the recommendation of his Clinical Psychologist with support t of his chain of command is starting the administrative process for the chapter 5-17. k. On 21 February 2006, he underwent a mental status evaluation. His DA Form 3822-R (Report of Mental Status Evaluation), shows he was being considered for discharge because of personality disorder. The staff psychiatrist’s opinion was that he had: * mental capacity to understand and participate in the proceedings * he was mentally responsible his evaluation consisted of clinical interview/psychometric testing indicates the applicant carries the diagnosis in accordance with DSM IV: * Axis I: Adjustment Disorder, Mixed * Axis II: Personality Disorder NOS * Recommendations follow up appointment Madigan Army Medical Center Behavioral Health Clinic * Precautions: Recommendation against use of weapons/live ammunition and securing off post weapons and Recommend an order against the use of alcohol * Fitness for Duty and Continued Service: Modify Duty-Psychiatrically cleared for any administrative action deemed appropriate by command and Meets psychiatric criteria for expeditious separation IAW Chapter 5-17, AR 635-200 * Remarks: Applicant has lifelong patterns of maladaptive responses due to long standing personality traits (characterological in nature); meets psychiatric criteria for Expeditious Separation (This should be given serious priority) l. On 27 February 2006 and 30 March 2006, he received monthly counseling for personal issues. The applicant already knew he was being released from the Army under chapter 5-17. SGT M__ counseled him and, stated he would do his best to prepare the applicant for his transition out of the Army. SGT M__ urged the applicant to continue doing things the right way even though his time left in the Army was short because he might still be punished under UCMJ while he was still on active duty. m. On 11 April 2006, the applicant’s immediate commander notified the applicant that under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), Chapter 5-17, he was initiating action to separate him for Other Designated Physical or Mental Conditions. The reasons for the proposed action are: he was diagnosed with Anxiety Disorder, NOS; Major Depressive Disorder; Post Combat Stress; Adjustment Disorder, mixed; and Personality Disorder. n. On 11 April 2006, the applicant acknowledged receipt of the foregoing notice from his commander that informed him of the basis for the contemplated action to separate him under AR 635-200, Chapter 5-17, and of the rights available to him. He exercised his right to consult with counsel who informed of the rights available to him under the regulation. * he indicated his understanding regarding entitlement to an administrative separation board * he indicated a statement in his own behalf was not submitted * he understood he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable condition was issued to him * he understood that if he received a discharge/character of service that is less than honorable, he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he realized that an act of consideration by either board does not imply that his discharge would be upgraded o. Subsequently, the immediate commander initiated separation action against the applicant under the provisions of chapter 5-17 (other designated physical or mental condition) of AR 635-200. His intermediate commander recommended approval. p. The separation authority approved the proposed separation case applicable to the applicant and directed he would be separated from the U. S. Army under the provisions of AR 635-200, Chapter 5-17 and that he would receive an honorable discharge. q. Orders 128-XXXX, dated 8 May 2006, Headquarters, I Corps, Fort Lewis, WA, reassigned him to the transition point for processing and discharged, effective 16 May 2006. r. He was accordingly discharged on 16 May 2006. His DD Form 214 (Certificate of Release of Discharge from Active Duty) shows his rank as PFC/E-3 and that he was discharged under the provisions of paragraph 5-17 of AR 635-200 due to a condition, not a disability. He completed 5 years, 3 months and 16 days of active service. His DD Form 214 shows in: * Block 4a, 4b (Grade, Rate or Rank) (Pay Grade)-PFC/E-3 * Block 25 (Separation Authority) - AR 635-200, Paragraph 5-17 * Block 26 (Separation Code) - JFV * Block 28 (Narrative Reason for Separation)- “Condition, Not a Disability” 6. By regulation (AR 635-200), paragraph 5-17 provides for the separation of Soldiers on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performances of duty. Such conditions may include, but are not limited to, disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired. 7. By regulation (AR 635-5-1), Separation code JFV is the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of AR 635-200, paragraph 5-17, based on a condition, not a disability. 8. The term "service-connected" is used by the VA (not by the military services) and it means that a veteran’s medical condition was directly caused by military service, occurred while in the military (but not necessarily on duty), was aggravated by military service, or was caused by conditions that are themselves service-connected. 9. Title 38, U.S. 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. 10. 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. 11. By regulation (AR 15-185), the ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 12. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) indicates he was seen on 24 Jan 2006 for a medication management appointment. He reported not taking his medication regularly until mid-December 2005. His diagnosis was Depression. He reported his medications were beneficial. On 8 Feb 2006, he was seen for a chapter 5-17 evaluation. His diagnoses were listed as Anxiety Disorder, not otherwise specified (NOS), PTSD (acute), Personality Disorder, and Alcohol Abuse Disorder. The provider noted continued noncompliance with treatment including medication. The applicant was found to meet retention standards IAW AR 40-501 and recommended for administrative separation. On 1 Mar 2006, his provider noted he has been hospitalized after he reported suicidal ideation and plans to run away. On 10 Mar 2006, he reported he was back on Celexa and feeling better. On 12 Apr 2006, his provider noted he did not meet criteria for MEB for behavioral health reasons. A review of JLV indicates the applicant completed a Compensation and Pension Examination on 28 Feb 2007. He was awarded a service connected disability rating of 30% for PTSD effective 17 May 2006. While he received temporary increases in his rating, it was returned to 30% in December 2006 and August 2007. Effective 1 Mar 2009. his rating for PTSD was increased to 70%. On 7 May 2010, he was granted individual unemployability backed dated to 17 May 2006. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health diagnosis at the time of his discharge. While he was found to meet retention standards, based on the initial C&P evaluation it is likely that he did not meet retention standards due to his PTSD. Recommend referring his case to the Disability Evaluation System office for their review and consideration. a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) Yes (2) Did the condition exist or experience occur during military service? (a) Yes (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Yes, it is mitigating for the misconduct that led to his reduction in rank (4) Does the condition or experience outweigh the discharge? (a) N/A BOARD DISCUSSION: 1. After review of the application and all evidence, the Board found partial relief is warranted. The applicant’s contentions, medical concerns, and the medical reviewer’s findings and recommendation was carefully considered. Based upon the preponderance of the evidence, the Board agreed the applicant’s record should be referred to the Office of the Surgeon General for medical evaluation consideration, with relief dependent upon a final medical determination. 2. The applicant was reduced in rank by way of UCMJ. By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the charged offense(s). The imposing commander's determination of guilt will not be upset by the ABCMR unless the Board determines the commander's determination was unsupported by the evidence or he or she failed to follow applicable regulations. The Board agreed there is insufficient evidence to upset the commander’s decision. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Legacy Disability Evaluation System (DES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the DES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that 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 changing his type of discharge without evaluation under the DES, and the restoration of SPC rank. 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 ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-17 provides for the separation of Soldiers on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performances of duty. Such conditions may include, but are not limited to, disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired. a. When a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Separation processing may not be initiated under this paragraph until the Soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. b. Unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status. 3. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers upon retirement, discharge, or release from active duty service or control of the Active Army. It established standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. The general instructions stated all available records would be used as a basis for preparation of the DD Form 214. The specific instructions for a. Block 4a, 4b (Grade, Rate or Rank) (Pay Grade) enter the enlisted rank/grade at the time of the Soldier's separation from active duty. b. Block 25, Separation Authority, obtain correct entry from regulatory or directives authorizing the separation. c. Block 26, Separation Code, obtain correct entry from AR 635–5–1, which provides the corresponding separation program designator code for the regulatory authority and reason for separation. d. Block 28, Narrative Reason for Separation, this is based on regulatory or other authority and can be checked against the cross reference in AR 635–5–1. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. It identifies SPD code JFV as the appropriate code to assign to enlisted Soldiers who are administratively discharged under the provisions of Army Regulation 635-200, paragraph 5-17, based on a condition, not a disability. 5. Title 38 U.S. Code 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 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. 7. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200008928 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1