IN THE CASE OF: BOARD DATE: 4 November 2021 DOCKET NUMBER: AR20210005549 APPLICANT REQUESTS: in effect, physical disability retirement in lieu of physical disability discharge with severance pay, and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * Medical Records (14 pages) * two self-authored letters to the Board * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 states: a. While in the Army she was sexually assaulted by a higher ranking man. She was scared and didn't tell anyone until she was out and home. After the rape she was numb and really didn't care about anything. She gave up on giving her all to the Army. She became hurt and saw that as her way out and away from this person so when she got her hip fractures the medical discharge process started. She was just out of it, she felt like she was walking in a dream, she just wanted to be away from there and him. She didn't want to tell anyone, she didn't want to fight for anything, she just wanted to be away. So ultimately she was medically discharged at 20 percent. So after years of suffering in silence she finally opened up to a friend and they convinced her to bring this to the Department of Veterans Affairs' (VA's) attention. She was medically discharged due to failure to adapt and also her hip fractures. In actuality, she was being raped and didn't feel like she could tell anyone. She was suffering and wanted to get away from there. Her life has been affected in every way since she was discharged. She spent the first 3 months after being home sitting on her mother's couch contemplating why she was even here and not wanting to be here. She was not able to show care or concern for any of her family. The thought of someone giving her a hug or touching her gave her anxiety that she can't explain. This aspect still affects her; she can't even hug her children without getting a cringe anxiety feeling, a feeling that she wishes she could crawl out of her skin. She has a problem showing love and emotion. She suffers from insomnia, anxiety, nightmares and depression. She spends her days in pain and also wishing for death. She doesn't understand how this one act can affect her life this much and manifest itself in her the way that it has. b. She is in counseling now for this issue and has been for about a year but it affects every aspect of her. She doesn’t understand how something like this can follow her and something she thinks that she is over can manifest itself inside. She is depressed. She has anxiety attacks. She has insomnia. She over eats to hide her feelings. She has gained over 100 pounds since leaving the Army. She doesn’t want anyone to ever look at her like a sexual thing again so the weight gain helps with that. She can't love or let herself be loved. Her entire life is crap; she doesn't even like talking about it or writing this letter because she knows her symptoms will increase because of it. Her nightmares will increase due to writing this. She has post-traumatic stress disorder (PTSD) due to this man taking advantage of her. c. She could go on but she doesn’t know what more to say. Her life is changed forever and all she can hope is that someday she can recover from this. She was medically discharged and she believes that if these factors would have been considered at the time of her discharge she would have gotten a medical retirement. She is rated at 80 percent through the VA and receives individual unemployablity at 100 percent because she hasn’t been able to get a job since 2009 when she was discharged. She has not held a job since 2009. She can't be around people without being extremely anxious. She can't talk to others without having crippling fear and anxiety. She cannot trust anyone. She is a shell of the person she was before joining the Army. They discharged her without knowing the whole story. The process was very rushed. d. Please help her to get this retirement so she can have insurance to work on these issues that are ongoing. She was sexually assaulted and suffers daily because of this. She wishes she would have told someone then and gotten help back then. She was scared and hurt and didn't see any way to get help from anyone. She just wanted to disappear and she still do wish she could blink out of existence so she didn't have to feel this way anymore. She has no happiness in life and she can't see it returning as she has lived the last 10 years without it. Please help her at least get this one aspect of her life fixed. To be able to have insurance to work on these issues and to get the retirement she feels she deserves. e. She feels like after she was sexually assaulted she gave up. She no longer could perform her duties as she should. She couldn't stay in the situation she was in. Therefore, with her injury they told her she could get out or get a permanent profile, she chose to get out. She was rushed through the process and got out as soon as she was able to. She feels like if this sexual assault had not happened she could have continued her military career. She feels like she was robbed of having this. She was kind of fast tracked out of the army and given a medical discharge. She feels like with all her injuries and her continued problems due to PTSD and sexual trauma she was unfairly discharged with a medical discharge. f. She is seeking medical retirement. This rape has affected her every day since it happened. It forced her to flee from a situation with less then what she deserved. She could not stay and face the man who did this to her on a daily basis. She had to get out and she saw this as her only and fastest option. Now she is left with no insurance to see a therapist that is close to her. She's left with insomnia, depression, not being able to show or receive love, and a feeling of wishing she could blink out of existence. She wouldn't think that one part of her life would affect her so much but it does. She wishes she could forget it; she wishes she could get over it. Before this happened to her she would argue that anyone can. She was so wrong. Having to go to work with her rapist every day is a hell she wouldn't wish on anyone. So when she found a way out she took it. She deserved to get medical retirement and she believes had all this been out in the open when she got out she would have been medically retired. Please consider her case to change her medical discharge to medical retirement, so she can get the help she desperately needs. She was not mentally capable of staying in the Army, she was scared and depressed and hated herself. She had to just take what she was given and get away. Please consider changing her medical discharge to medical retirement. 3. The applicant underwent a medical examination for the purpose of enlistment on 18 April 2008. Her DD Form 2808 (Report of Medical Examination) shows she was qualified for service and did not show any significant defects. Her DD Form 2807-1 (Report of Medical History) does not show she reported any significant defects. She enlisted in the United States Army Reserve on 18 June 2008 for a period of 8 years in the delayed entry program (DEP). She was discharged from the DEP, enlisting in the Regular Army for a period of 4 years 1 July 2008. 4. The applicant completed basic training and was transferred for Fort Sam Houston for advanced individual training (AIT) on 12 September 2008. 5. The applicant’s records contain a DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) which shows a PEB convened on 2 February 2009 at Brooke Army Medical Center (BAMC). a. The Board found her physically unfit and recommended a rating of 20 percent and her disposition should be separation with severance pay if otherwise qualified. b. The applicant’s unfitting conditions were right femoral neck stress fracture, rated at 10 percent, and left sacroilitis with referred pain to the hip, rated at 10 percent. c. The condition of adjustment disorder was determined to be a condition not constituting a physical disability in accordance with Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation), enclosure 5. d. The PEB found the applicant’s disability is not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war, and incurred in the line of duty during a period of war. The disability did not result from a combat-related injury. e. The applicant concurred and waived a formal hearing of her case on 10 February 2009. 6. The applicant was honorably discharged on 27 February 2009 under the provisions of AR 635-40 (Standards of Medical Fitness), chapter 4. Her DD Form 214 shows she was credited with 7 months 27 days of active service. The narrative reason for separation is disability, severance pay, non-combat related. 7. The applicant provided 14 pages of medical records, including a Mental Disorders (other than PTSD and Eating Disorders) Disability Benefits Questionnaire. 8. On 4 August 2021, the ABCMR requested an advisory opinion from the Department of the Army Physical Disability Agency. An advisory opinion was received on 18 August 2021 that found the applicant’s request for re-review of disability ratings to be legally insufficient. It states: a. [The applicant] was medically separated with severance pay for her bilateral hip conditions on 21 May 2009. [The applicant] now appeals seeking to be medically retired due to her belief that her mental health condition is unfitting. At the time of [The applicant]’s PEB, her mental health condition was reviewed and found to be fitting. [The applicant] now argues that she was a victim of military sexual trauma (MST) and that had she disclosed the MST at the time of her Physical Evaluation Board (PEB) she would have been medically retired. [The applicant]’s DA Form 199 clearly spells out which conditions were found to be unfitting and which were found to be fitting and what her proposed disposition would be. [The applicant] reviewed and accepted the findings and waived her right to appeal and/or to seek a VA Ratings Reconsideration (VARR). b. [The applicant] presented no evidence to indicate that the fitness determination for her mental health condition, at the time of her separation, was in error. In order to be placed on the TDRL a Soldier must have a combined rating for her unfitting conditions of at least 30 percent. The unfitting conditions must also be found to be unstable for rating purposes. In order to be placed into PDR a Soldier must have a combined rating for her unfitting conditions of at least 30 percent and those conditions must also be found to be permanent and stable. Here, [the applicant]’s case does not evidence that she was rated at 30 percent. A review of the case file also does not reveal any error by the PEB. While it is tragic that [the applicant] may have suffered a MST, it is speculative to state that she would have been medically retired due to the MST and its effect on her mental health. Suffering a MST does not in and of itself equate to qualifying for a medical retirement. 9. A copy of the advisory opinion was provided to the applicant. She provided a response to the advisory opinion, along with two letters of support and a developmental counseling form. She resubmitted her DA Form 199, noting she was not rated for her behavioral health condition because adjustment disorder did not constitute a disability. The applicant also provided a VA Problem List which shows her current diagnoses for PTSD, sleep apnea, depression, and fibromyalgia (which she states can be brought on by stress or trauma). In her response to the advisory opinion, the applicant states: a. She doesn’t know where to start so she guesses she’ll just start when everything started. She was raped by someone who was above her in rank. After that she did seek mental health help a few times due to being really depressed. She did not tell them about the rape; she was too scared and embarrassed. By going to mental health she was treated like complete crap by all her sergeants. She was told she was weak and that she was just seeking attention. The sergeants at this time were really in complete control of her medical appointments made, so it made it very difficult for her to see any mental health professional. b. As far as her discharge went, they only took the records from her few visits to mental health. There was never a formal discharge mental health evaluation at the time she was going through her discharge. They only had the information from the few times she was able to see someone in mental health. She was in the same unit as the person who raped her and she was told if she didn’t sign the discharge they had set up for her, she would be in that unit for up to 6 months more and the outcome would not be any different. She was told she would have Tricare for all her service connected disability for life and that she should just sign so she could get home as early as that week and if she had regrets she could appeal the decision once she got home that she would have up to a year to appeal the decision. She knows now all of this was false. She just wanted out of there, she was not mentally stable to be making these decisions but she felt helpless and backed into a corner. She just had to get away for that situation. She was not thinking about the repercussions of her signing. She just wanted to be away from him and that place. She didn’t want to tell anyone about what was happening to her because she was scared of what would happen to her if she did. c. After she got home she literally didn’t move from her mother’s couch for a solid month. Now looking back on it she guesses she was traumatized. Her mother could corroborate this if she was still here but she has passed away. Her life has been affected by this since these things happened to her. she has not worked since her discharge in 2009. She has not been able to put herself around people. She is depressed every day. She has anxiety attacks at least 3 to 4 times a week. She has now been diagnosed with PTSD by her psychologist. She has trouble making connections with people. She can’t feel any emotion. She can’t even hug her kids and feel love she knows she should and she acts like she does but it’s a constant struggle. She has insomnia and can’t sleep and when she does she has nightmares about people doing sadistic sexual things to her. She doesn’t like writing or talking about it because it just brings it fresh in her mind and makes things 10 times worse for her. She just tries to act like it didn’t happen but her body and mind will not let her. She has chronic pain every day. She has irritable bowel syndrome and she has also gained about 100 pounds since she left the army. She can honestly say if the discharge board had all the Ainformation at the time of her discharge they would have retired her. d. She has spoken with many people in discussions and forums on line about what they were rated at discharge for issues due to MST and PTSD and the average rating they received was temporary disability retired list (TDRL) 50 percent (DoD). She was in her lowest point when she left the Army. She was considering ending it all then and she knows if she hadn’t signed those papers and went home when she did, she would have tried it. She wouldn’t have told anyone both because no one cared and [people] can’t be weak in the Army. She knows that if all the information about her having PTSD and being sexually assaulted had been out, she would have gotten her retirement. Her mental health did not even receive a rating at the time of discharge due to them putting it down as an adjustment disorder. She has not been able to be happy since the Army, not a day she can remember that she’s felt happiness. In hind sight she should have just sucked it up and let it all out while she was there but she just couldn’t like she said, she was not in a place mentally that she could. She didn’t tell her husband about this event for about 7 years. She just wanted to forget it. Until she looked up her symptoms and they all stem from trauma. She wishes she could just put her memories and feelings into you whoever you were so you’d know the situation she’s in but she can’t. All she can say is she knows if when she got discharged the board knew exactly where her mental state was they wouldn’t have let her leave and when they did, she would have been medically retired. e. She has to live with this and try to find a way to cope with this for the rest of her life. As much as she tries to push it back it just comes out in different ways mentally and physically. She doesn’t know what more she can say or put in this letter to help [the Board] understand. She was not able to come forward with this information while in the Army and she wasn’t able to get the help she needed while being discharged. She just needs help to be able to see the doctors she needs to see. She needs the insurance she will get with this retirement to see the professional she needs to see to recover and live with this. She already has 80 percent through the VA and has individual unemployability due to not being able to work. Please help her to change this injustice she was given by getting pushed out of the Army with a medical separation. She thanks the board for their time. She hopes [the Board] can understand her letter she tried to write it fast and get it over with. She has asked a friend to write a letter about how her mental health was then and how much they were tortured for trying to receive any help. She just wants to get this righted and move on in trying to find out how to be happy again. She was rated at 20 percent at the time of discharge. There is no doubt in her mind that if her mental health had been added it would have given her the extra 10 percent she needed to get her retirement. 10. The applicant provided a letter of support from J_ W_ who states: a. She knows the applicant from their AIT unit in 2008 and also in the medical unit where they were placed when they were going through their discharge in 2009. She noticed a decline in the applicant’s mental health and her demeanor during this time. The applicant became withdrawn and depressed; she just wasn’t the same happy person. This decline happened and she was confused what could have caused the applicant to be so down so quickly. The applicant started drinking heavily and doing things to get in trouble. While she was never caught and reprimanded for her behavior, she had an obvious change in her behavior. She just thought it was due to the applicant being hurt and the process of getting out of the Army. She did not realize that the applicant had gone through an MST. The applicant’s behavior and actions make more sense to her now that she knows what she was going through. b. In their AIT unit, they were discouraged from going to any kind of medical appointments. They would be shamed for being hurt and treated like they were all faking and were second class citizens. When they got moved to the medical unit it was much worse. If they had too many appointments, their sergeant would stand them in formation and ask them why they had so many appointments and why they were never there; also that they needed to cut back on their appointments or they would be punished. Their sergeant was not cut out for the job she was doing. They were publicly shamed and even had dirty mop water dumped on them in formation because of the sergeant’s anger. The sergeant was relocated and found unfit for being in charge of them right at the same time the applicant was being sent home. While in the medical unit, she convinced the applicant to seek mental health services. She knows the applicant went a couple of times. She did not know the full extent of what the applicant was going through but she knows she was in a rush to get home even though several people were trying to convince her to stay and fight her case for retirement. c. The applicant was very depressed and a very different person then the one she had met months before. The applicant was at the lowest she had ever seen her. She was not in a good spot mentally at discharge. She was very flat, withdrawn and depressed. The applicant did not have the ability to seek help due to the sergeant in charge of them. They were in a tough spot and she thinks that’s why she just got out as quickly as possible. She knows mental health is important and hopes the applicant is getting the help she needs finally. She hopes the applicant can heal from the trauma she faced in the Army. She truly believes the applicant was suffering from PTSD due to the rape that occurred during her service. She believes the applicant was not able to seek the help she needed while in service due to many factors but this does not mean she was not suffering from this at the time she was discharged. 11. The applicant provided a letter of support from . It states: a. Her friend, the applicant, served in the United States Army from 1 July 2008 to 28 February 2009. Before the applicant enlisted she was a happy person and enjoyed hanging out with her family and friends. They were almost inseparable. They would take day trips and spontaneous vacations. They had fun and she was a great person to be around. b. When the applicant first enlisted she seemed to be good. The applicant would send letters to her mother and herself. A few months later, she didn’t get any letters and because they were best friends, she didn’t understand what was wrong. She stopped communication with them and when they did hear from the applicant, her demeanor had changed. She was very depressed and down sounding. She no longer sounded or acted happy. She just kept telling them she wanted to come home. c. When the applicant got back, she was not the best friend she knew before she left. The applicant stopped wanting to go places like they used to and when they did get together, she didn’t seem interested in what they used to do. The applicant seemed to just want to stay in the house and never get out. She never acted like anything would be fun or interesting to her. She appeared to be depressed and withdrawn when she got home. The applicant still has not gotten back to the person she used to be. They no longer get together and she still doesn’t really ever leave her house. 12. The applicant provided a DA Form 4856 (Developmental Counseling Form), dated 28 January 2009. It shows she was counseled for failure to obey a direct order or regulation, specifically, going to BAMC without informing cadre. The applicant states this is evidence she was written up for going to a medical appointment. 13. 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. 14. 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. 15. 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. 16. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 17. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. a. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) and Health Artifacts Image Solutions (HAIMS) indicates the applicant was seen in the behavioral health clinic on 25 November 2008. She reported feeling hopeless about her life and being in holdover status. She stated she had significant financial stressors. The applicant stated she was meeting with an orthopedic surgeon on 3 December 2008 and had a medical evaluation board (MEB) appointment on 6 January 2009. She was diagnosed with Adjustment Disorder with anxiety and depressed mood. b. She returned to the clinic on 6 February 2009. She reported having a hard time dealing with the death of four loved ones since basic combat training. She was provided with stress management and sleep hygiene handouts and continued with an Adjustment Disorder diagnosis. She was released without any duty limitations. She had no further behavioral health appointments. c. Her service record indicates the PEB was convened on 2 February 2009 and determined that she has a combined rating of 20% for femoral neck stress fracture and left hip pain. On 10 February 2009, the applicant concurred with the PEB findings. d. A review of the VA's Joint Legacy Viewer indicates she completed a Compensation and Pension Examination for Adjustment Disorder on 6 June 2009 and was diagnosed with Depressive Disorder, not otherwise specified. e. Her next behavioral health appointment was 15 May 2012. She reported a history of depressive systems with her first episode in 2006 when she was going through a divorce. The provider diagnosed her with Major Depressive Disorder (MDD) with a need to rule out Dysthymia given her long history of depression. She has a service connected disability rating for Mood Disorder which was subsequently increased to 70% effective 25 August 2017. f. There is documentation to support a behavioral health diagnosis at the time of her discharge. The applicant met behavioral health retention standards at the time of her discharge. It is acknowledged that the applicant has a service-connected disability of 70% for Mood Disorder. This determination alone, however, does not automatically mean that military medical disability/retirement is warranted. The applicant met behavioral health retention standards in accordance with AR 40-501 thus medical retirement/disability is not warranted. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. The Board determined the available evidence is sufficient to fully and fairly consider this case. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the applicant did not have any unfitting behavioral health conditions for which she should have received a disability rating from the Army. The Army assigns disability ratings based on unfitting conditions present at the time of a Soldier's processing through the disability evaluation system, and is not empowered to change a disability rating based on future severity of a service-connected disability. Based on a preponderance of evidence, the Board determined the applicant's discharge for disability with severance pay was not in error or unjust. 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, 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. 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 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an 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 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. 3. 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. 4. Title 10, U.S. Code, 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 percent. Title 10, U.S. Code, 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 percent. 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. DODI 1332.38 (Physical Disability Evaluation), in effect at the time, implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability, making administrative determinations for service members with service-incurred or service aggravated conditions, and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty. a. Enclosure 4 (Guidelines Regarding Medical Conditions and Physical Defects that are Cause for Referral into the Disability Evaluation System) paragraph E4.13.1.4 states personality, sexual, or factitious disorders, disorders of impulse control not elsewhere classified, adjustment disorders, substance-related disorders, mental retardation (primary), or learning disabilities are conditions that may render an individual administratively unable to perform duties rather than medically unable, and may become the basis for administrative separation. These conditions do not constitute a physical disability despite the fact they may render a member unable to perform his or her duties. b. Enclosure 5 (Conditions Not Constituting a Physical Disability) lists the development defects and other specified conditions not constituting a disability. Paragraph E5.1.2.9.4. lists adjustment disorders. 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, traumatic brain injury, sexual assault, or sexual harassment. 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. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 10. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005549 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1