IN THE CASE OF: BOARD DATE: 31 January 2022 DOCKET NUMBER: AR20210008798 APPLICANT REQUESTS: Correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she is currently disabled due to post-traumatic disorder (PTSD). Additionally, she requests a change of her narrative reason for separation and separation code. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two Chronological Records of Medical Care * Out Patient Medical Record * DD Form 214 * Two Assessments and Plans * Department of Veterans Affairs (VA) Statement in Support of Claim * Progress Notes * VA Letter * Two VA Rating Decisions 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 she would like her DD Form 214 updated/corrected to show her current disabilities, which were overlooked at the time of discharge from active duty. Her current disabilities are PTSD and tinnitus. The recent policy allows for liberation consideration concerning PTSD, traumatic brain injury (TBI), military sexual assault (MST), and harassment. She was not aware of the liberal consideration policy until she was approved for service connected disabilities in 2019 or that she could have her DD Form upgraded to show her current status. 3. The applicant provided the following documents in support of her request: a. Two Chronological Records of Medical showing on 30 October 2001, she was evaluated for bilateral foot pain/shin pain. On 17 April 2002, she was evaluated for difficulty breathing while sleeping and shortness of breath, prior record of palpitation, presumptive anxiety. b. Out Patient Medical Record showing on 22 March 2002, she was evaluated at the Primary Care Clinic, , for chest pain, due to an anxiety attack. She indicated she had chest pain for the past 2 weeks. She had experienced anxiety attacks before, but they appeared to have been getting more severe. She had been in for about 6 weeks. Her husband stated she had been stressed for the past 2 weeks and her attacks had gotten more frequent. c. A Civilian Assessment, date 1 August 2008, showing she was stressed out and possibly depressed after several major incidents in her life. She was divorced in the last year, assaulted by a postal customer, and she continued to have major problems with her supervisor and manager, which she saw as harassing her regularly. This meeting was to address workplace stress. d. Civilian Assessment and Plan, showing the applicant was diagnosed to have Sjogren’s Syndrome [an immune disorder], a depressive disorder, insomnia, and multiple joint pain. e. A VA Statement in Support of Claim wherein she states she moderately isolates herself from others, due to a lack of trust. She gets a quick heart rate in crowed places and often cry out of fear. She does not work anymore, does not handle stress well, and she has short time memory loss. She does not sleep well, she no longer do any activities due to depression, a lack of energy, a lack of motivation, and pain. f. Progress Notes, dated 23 March 2020, showing she was hospitalized from 22 to 23 March 2020, for atypical chest pain/anxiety, and lower extremity weakness. g. Two VA Rating Decisions, dated 30 November 2020, showing her period of service from 24 May 2001 to 24 August 2002 is honorable and she has one or more disabilities rated as 70 percent service connected, effective 20 November 2020. She was being paid at the 100 percent rate because she was unemployable, due to her service connected disabilities. 4. On 24 May 2001, the applicant enlisted in the Regular Army for 4 years in pay grade E-2. She held military occupational specialty 31U (Signal Support Systems Specialist). On 10 February 2002, she was assigned to Korea. 5. The facts and circumstances surrounding the applicant's active service from 24 May 2001 to 24 August 2002 is not available for review with this case. However, the available evidence does contain a DD Form 214 that was prepared at the time of separation that shows on 24 August 2002, she was released and transferred to the United States Army Reserve (USAR). Her DD Form 214 shows she completed 1 year, 3 months, and 1 day of creditable active service. Her awards are listed as the National Defense Service Medal and Army Service Ribbon. Her DD Form 214 also reflects in: * Type of Separation, Release from Active Duty * Character of Service, Honorable * Separation Authority, Army Regulation (AR) 635-200, Chapter 8 * Separation Code, “MDF” * Reentry Code, “3” * Narrative Reason for Separation, Pregnancy 6. AR 635-200 provides for the separation of enlisted personnel. Chapter 8 establishes policy and procedures and provides authority for voluntary separation of enlisted women because of pregnancy. The unit commander will direct an enlisted woman who believes that she is pregnant to report for diagnosis by a physician. When medical authorities determine an enlisted woman is pregnant, she will be counseled and assisted as required by chapter 8. The unit commander will explain the purpose of the counseling is to provide information concerning options, entitlements, and responsibilities, and the Soldier may remain on active duty or upon request, be separated per this chapter. 7. AR 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 codes to be entered on the DD Form 214. The SPD code “MDF” is the appropriate code to assign Soldiers separated under the provisions of AR 635-200, chapter 8, by reason of pregnancy. 8. The SPD/RE Code Cross Reference Table stipulates the RE code of "3" was to be assigned to members separated with the SPD code of “MDF.” 9. The applicant provided two VA Rating Decisions dated 30 November 2020, showing her period of service from 24 May 2001 to 24 August 2002 is honorable and she has one or more disabilities rated as 70 percent service connected, effective 20 November 2020. She is being paid at the 100 percent rate, because she is unemployable, due to her service connected disabilities. She also provided other documents listed above under the “Applicant's Supporting Documents Considered by the Board.” The Board was provided the applicant’s submissions in its entirety. 10. Regarding the applicant’s contentions that her DD Form 214 should be corrected to show she is currently disabled due to PTSD and change her narrative reason for separation and separation code. The applicant’s narrative reason for separation “pregnancy,” separation code of “MDF,” and RE code of “3” are appropriate based on separation under the provisions of AR 635-200, chapter 8. 11. The facts and circumstances surrounding the applicant's active service are not available, however, she would have received a positive pregnancy test and been counseled and provided information concerning her options, entitlements, responsibilities, and that she could remain on active duty or upon request, be separated under the provisions of AR 635-200, chapter 8. She would have acknowledged that she had been counseled concerning her rights and that she understood her entitlements, responsibilities, and expectations if she remained on active duty. After being advised of her options she would have voluntarily elected separation under AR 635-200, chapter 8, due to pregnancy. 12. The available evidence does show the applicant suffered from anxiety while in an active duty status. The evidence does not show she suffered from PTSD, TBI, MST, nor harassment while serving in an active duty status. 13. In reaching its determination, the Board can consider the applicant's petition, her submissions, and service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. 14. 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/or 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 a change in the separation authority of her DD 214 and, in essence, a referral the Disability Evaluation System. She states: “I would like for my DD 214 to be updated to include my current service- connected disabilities that were overlooked at the time of my separation from active duty. My current disabilities are PTSD and tinnitus. There have been recent changes in policy which include liberal consideration for PTSD, TBI, or military sexual assault or harassment. Unfortunately, I have suffered from PTSD and military sexual harassment both.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of Service under consideration shows she entered the regular Army on 24 May 2001 and was honorably discharged on 24 August 2002 under provisions provided in chapter 8 of AR 635-200, Personnel Separations – Enlisted Personnel (1 November 2000): Separation of Enlisted Women—Pregnancy. c. The applicant believes the polices of liberal consideration are applicable to the facts of this case. However, the Liberal Consideration Policies outlined in the Secretary and Undersecretary memorandums address a former Service Member’s request to modify the discharge characterization of their service based on a pre-discharge service incurred mental health condition and do not apply discharges for preexisting medical conditions or disability processing. d. Her pre-entrance Report of Medical History and Report of Medical Examination show she was in good health, without significant medical history or conditions. e. Medical documentation submitted with the application shows the applicant was treated for bilateral foot and shin pain in October 2001 and twice for anxiety on March 2002. A 17 April 2002 encounter for her anxiety shows she is seven weeks into her first pregnancy. f. No other medical documentation was submitted with the application and there are no encounters in AHLTA. Neither her separation packet nor documentation addressing her discharge were submitted with the application or uploaded into iPERMS. g. The applicant was approximately 25 weeks pregnant at the time of her discharge and there is no evidence of pregnancy related complications or any other health issues prior to her discharge. h. There is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, 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. i. Review of his records in JLV shows he has been awarded two VA service- connected disability ratings in 2018, one for PTSD and the second for tinnitus. However, the DES compensates an individual only for service incurred medical 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. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. j. It is the opinion of the Agency Medical Advisor that neither a change in the reason for separation / separation authority nor a referral of her case to the Disability Evaluation System is warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered applicant’s contentions, military record, and regulatory guidance. The Board reviewed the supporting DD214 which shows the narrative reason for separation as pregnancy. Evidence of record shows the applicant was separated based on pregnancy and her DD 214 properly prepared in accordance with regulatory guidance in effect at the time. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. 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. 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, 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 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. AR 635-200 provides for the separation of enlisted personnel. Chapter 8 establishes policy and procedures and provides authority for voluntary separation of enlisted women because of pregnancy. The unit commander will direct an enlisted woman who believes that she is pregnant to report for diagnosis by a physician. When medical authorities determine an enlisted woman is pregnant, she will be counseled and assisted as required by chapter 8. The unit commander will explain the purpose of the counseling is to provide information concerning options, entitlements, and responsibilities and that the Soldier may remain on active duty or upon request, be separated per this chapter. 3. AR 635-5 (Separation Documents), in effect at the time of the applicant's active duty service, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparation of the DD Form 214. It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. The regulation also states that a DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty, including USAR personnel who are separated after completing 90 days or more of continuous active duty. 4. AR 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code “MDF” is the appropriate code to assign Soldiers separated under the provisions of AR 635-200, chapter 8, by reason of pregnancy. 5. The SPD/RE Code Cross Reference Table stipulates the RE code of “3” would be assigned to members separated with the SPD code of “MDF.” 6. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR. Table 3-1 includes a list of the RA RE codes: a. RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable. They are ineligible unless a waiver is granted. 7. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 8. 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; TBI; sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. 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. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 9. 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. a. 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 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. b. 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. //NOTHING FOLLOWS//