IN THE CASE OF: BOARD DATE: 28 September 2021 DOCKET NUMBER: AR20210005564 APPLICANT REQUESTS: the following: * a change of his administrative separation to a medical discharge * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Time Line list * DA Form 3349 (Physical Profile Board Proceedings) * Regular Army (RA) enlistment documentation * Mental Status Evaluation * service medical records * DD Form 214 (Certificate of Release or Discharge from Active Duty) * post-service and Department of Veterans Affairs (VA) medical records FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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 states he was wrongfully discharge and should have been medically discharged. He was suffering from depression at the time. He was misdiagnosed with back, neck, wrist, elbow, and other medical conditions. He knew he should have been medically discharged when the VA granted him a service-connected rating for depression. 3. The applicant provides his: * Time Line list * DA Form 3349, dated 29 May 1981 * RA enlistment documentation, dated 20 December 1982 * Mental Status Evaluation, dated 20 October 1983 * service medical records, dated between July and October 1983, showing he received medical treatment for depression, wrist and forearm and back pain, and several other non-mental health conditions * DD Form 214, for the period from 20 December 1982 to 11 January 1984 * post-service and VA medical records showing he was granted service-connected ratings for unspecified depressive disorder (30 percent (%)) and tinnitus (10%), effective 29 July 2013 and 18 August 2016, respectively 4. Review of the applicant’s service records show: a. He enlisted in the RA on 17 June 1980 and he held military occupational specialty (MOS) 71M (Chapel Activities Specialist). b. A DA Form 3349, dated 29 May 1981, shows he was assigned a temporary profile for a left elbow sprain, with an expiration date of 26 June 1981. c. He was promoted to E-4 on 1 November 1982. d. Orders Number 349-205, dated 15 December 1982, announced his honorable discharge on 19 December 1982, for the purpose of his immediate reenlistment. e. He enlisted in the RA on 20 December 1982. f. On 17 January 1983, he accepted nonjudicial punishment (NJP) for failing to go to his appointed place of duty on 8 and 11 January 1983 and willfully disobeying a lawful command from his superior commissioned officer on three occasions. His punishment included a reduction to E-3. He did not appeal and he was reduced accordingly. g. On 12 May and 30 June 1983, he received counseling on his unacceptable behavior, job performance, and potential for reenlistment. h. On 22 August 1983, he accepted NJP for being absent without leave on 25 July 1983 and larceny of government property. His appeal was denied on 31 August 1983. i. On 15 September 1983, a bar to reenlistment was initiated against him for his record of NJPs. j. In a Memorandum For Record, dated 19 September 1983, the noncommissioned officer in charge stated the events leading up to and the ultimate dismissal of the applicant from the Chapel Section at Fort Rucker, AL. k. On 20 October 2003, he underwent a mental status evaluation. The examining psychiatric clinical nurse stated: (1) The service member (SM) was referred for behavior described as “erratic and moody with a tendency not to listen until he had a problem.” He denied that description of his behavior. He was previously seen in July on·a self-referral for a diagnosis of Adjustment Disorder with Depressed Mood and Marital Discord. He was placed on antidepressant medication, which he stated he did not take. He also cancelled several follow-up appointments. Psychological testing at that time indicated depression with underlying passive aggressive personality features. Diagnosis: No mental disorder; however, there appeared to be underlying passive-aggressive personality features. (2) While the SM could be periodically depressed, he did not comply with treatment recommendations, which could alleviate some of his symptoms. His overall behavior appeared to reflect an underlying maladaptive personality style. That behavior usually did not resolve with short term treatment, and only in motivated patients with long-term treatment. The SM’s failure to comply with treatment reflected a lack of motivation; therefore, he was cleared psychiatrically for any administrative action deemed appropriate by the command. l. On 7 November 1983, flagging action was initiated against him for a pending chapter 13 discharge. m. On 29 November 1983, the applicant’s immediate commander recommended the applicant’s separation under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory duty performance, with a general discharge. He advised the applicant of his rights. n. On 13 December 1983, after consulting with counsel, he acknowledged receipt of the proposed separation action and receipt of a general discharge and its effect. He waived his rights and elected to submit a statement in his own behalf. In his statement, the applicant stated he wished to remain in the Army, there were things in his chapter separation that were untrue, and he was denied an MOS change; so he had to be chaptered. o. On 5 January 1984, the separation authority approved his discharge and directed the issuance of a General Discharge Certificate. p. He was discharged from active duty accordingly, in pay grade E-3, on 11 January 1984. His service was characterized as general, under other conditions. His DD Form 214 shows he completed the following and was awarded/authorized the: * 1 year and 21 days of net active service this period * 2 years, 6 months, and 3 days of total prior active service * 5 months and 29 days of total prior inactive service * 1 year, 6 months, and 21 days of foreign service * Army Service Ribbon * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar q. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within it 15-year statute of limitations. 5. By regulations: a. AR 635-200, a Soldier may be discharged for unsatisfactory performance. An honorable or general discharge will be issued based on the individual’s record of service. b. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), a Soldier may be discharged from the Army for not meeting retention standards under the authority of chapter 3 of AR 40-501 and awarded a disability rating assigned by the Army’s disability system. 6. 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. 7. 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. 8. Title 38, CFR, Part IV is the VA 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. 9. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 10. AR 15-185 (ABCMR), 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. 11. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of his 11 January 1984 under honorable conditions discharge, and in essence, a referral to the Disability Evaluation System (DES). He states that he suffered from depression at the time of his discharge. b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 for the period of service under consideration shows he entered the regular Army on 20 December 1982 and was discharged on 11 January 1984 under the provisions provided in chapter 13 of AR 635-200, Personnel Management – Enlisted Personnel (1 October 1982): Separation for Unsatisfactory Performance. c. Because of the period of service under consideration, there are no encounters in AHLTA or documents in iPERMS. d. The applicant received an Article 15 on 27 January 1983 for twice failing to repair and three times failing to obey the lawful order of a commissioned officer. e. The applicant received and Article 15 on 22 August 1983 for having been absent without leave (AWOL) 25-26 July 1983, and for “wrongfully appropriate a Mastercraft vacuum cleaner, of a value of about $128.00, the property of the US Government. This is in violation of Article 121, UCMJ.” f. The applicant underwent a mental status evaluation on 20 October 1983. The provider noted the applicant’s behavior as passive and aggressive, and that his mood was depressed. He stated the applicant did not have mental health disorder but did appear to have underlying passive-aggressive personality features. From this evaluation: (1) “SM is referred on Form 44 for behavior described as “Erratic and moody with a tendency not to listen until he has a problem.” SM denies this description of his behavior. SM has received two Art 15's for failure to repair, AWOL, and larceny of government property. (2) SM previously seen in July on self-referral for a diagnosis of Adjustment Disorder with Depressed Mood and Marital Discord. SM was placed on an antidepressant medication which he states he did not take. He also cancelled several follow-up appointments. (3) Discussion: While this SM may be periodically depressed, he does not comply with treatment recommendations which may alleviate some of his symptoms. His overall behavior appears to reflect an underlying maladaptive personality style. This behavior usually does not resolve with short term treatment, and only in motivated patients with long term treatment. This SM's failure to comply with treatment reflects a lack of motivation, therefore, he is cleared psychiatrically for any administrative action deemed appropriate by Command.” g. The provider opined that the applicant had the mental capacity to understand and participate in proceedings, was mentally responsible, and met the medial retention standards of AR 40-501, Standards of Medical Fitness. h. The applicant was recommended for discharge under paragraph 13-2 of AR 635- 200 on 28 November 1983. The brigade commander approved his separation on 5 January 1984. i. There is no evidence the applicant had a mental health or other medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. j. In a 27 June 2019 memorandum form his treating psychiatrist: “{Applicant} is diagnosed with Major Depressive Disorder recurrent severe, Generalized Anxiety Disorder and ADHD combined type. {Applicant} states that he was also treated for depression while in the military. It is in my professional opinion that it is possible the depression from when he was in the military is linked to his depression currently.” k. Review of his records in JLV confirm that he has been awarded multiple VA service connected disability ratings, including one for a mood disorder. However, the DES compensates an individual only for condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. That role and authority is granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. l. Under liberal consideration policies, his depression may mitigate several of his actions, but it cannot mitigate the larceny. It is the opinion of the ARBA medical advisor that neither upgrade of his discharge nor a referral to the DES is warranted. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The Board carefully considered the applicants request, supporting documents, evidence in the records, and regulatory guidance. The Board considered the applicant's statement, the medical records, and the review and conclusions of the advising official. Based upon a preponderance of the evidence, the Board concurred with the medical advisory opinion finding insufficient evidence the contested medical conditions failed to meet retention standards during his period of service. Therefore, the Board determined referral to DES for consideration of a medical separation is 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. REFERENCES: 1. Title 10, U.S. Code (USC), section 1552(b), provides that applications for correction of military records must be filed within three 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7a (Honorable Discharge) – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 13 – a member could be separated when it was determined he/she was unqualified for further military service because of unsatisfactory performance. The service of members separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions as warranted by their military record. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, prescribed policy and implements the requirements of chapter 61 (Retirement or Separation for Physical Disability) of Title 10, U.S. Code (USC). The regulation stated: a. The mere presence of a medical impairment did not in and of itself justify a finding of unfitness. In each case, it was 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. A Soldier was physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. b. The Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) was primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Because of differences between Army and VA applications of rating policies, differences in ratings could result. Unlike the VA, the Army must first determine whether or not a Soldier was fit to reasonably perform the duties of his office, grade, rank, or rating. Once a Soldier was determined to be physically unfit for further military service, percentage ratings were applied to the unfitting conditions from the VASRD. Those percentages were applied based on the severity of the condition at the time of separation. 4. AR 40-501 (Standards of Medical Fitness), in effect at the time, governed medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness was made, the Physical Evaluation Board would rate all disabilities using the VASRD. Ratings can range from 0% to 100%, rising in increments of 10%. 5. Title 10, USC, 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%. Title 10, USC, 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%. 6. Title 38, USC, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 7. 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on 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. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 8. 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) AR20210005564 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1