IN THE CASE OF: BOARD DATE: 4 November 2021 DOCKET NUMBER: AR20210005657 APPLICANT REQUESTS: in effect, * entry into the U.S. Army disability evaluation system (DES) * a finding by the DES that he was medically unfit * correcting his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 23 February 2006 to show in – * Block 23 (Type of Separation) – medical separation or retirement * Block 25 (Separation Authority) – Army Regulation 635-40, chapter 4 * Block 26 (Separation Code) – a medical separation code * Block 28 (Narrative Reason for Separation) – medical separation or retirement instead of misconduct (minor infractions) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Summary of Benefits Letter dated 7 November 2016 * Department of the Army (DA) Army Review Boards Agency (ADRB) Army Docket Number AR20170018004 dated 9 October 2008 FACTS: 1. The applicant did not file within the 3-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 he was medically diagnosed with post-traumatic stress disorder (PTSD) after his deployment to Iraq. The VA identified his PTSD and is treating him for PTSD. He is rated 100 percent service-connected by the VA. He knows the incidents that occurred during his service were because he had symptoms of PTSD. He applied to the Army Discharge Review Board (ADRB) and that board upgraded his character of service from general, under honorable conditions to honorable in Docket Number AR20170018004. He now knows his PTSD symptoms affected his ability to serve in the Army and led to his acts of misconduct. As the ADRB found it was his PTSD that led to his early discharge, he is requesting in effect entry into the Army DES so his record will show he was medically separated or medically retired by appropriate authority. 3. The following facts are recorded within his official military personnel file. a. On 21 October 2003 he enlisted in the Regular Army in pay grade E-1 for a period of 3 years. He completed training, meeting the training standards for military occupational specialty 14S (Avenger Crewmember). b. On or about 7 August 2004 he arrived with his unit in Iraq to support Operation Iraqi Freedom. c. He received the Combat Action Badge for actively engaging or being engaged by the enemy. d. On or about 7 August 2005 he redeployed with his unit to the continental United States to Fort Carson, Colorado. e. On or about 6 September 2005 he was reassigned to Fort Lewis, Washington. He was further assigned to a new air defense unit on or about 14 September 2005. e. On 11 October 2005 he was formally counseled because he had tested positive for an illegal substance during a company urinalysis test. f. On 20 October 2005 he accepted field grade nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine during the period 6 August 2005 to on or about 6 September 2005. His punishment was reduction to private/pay grade E1, forfeiture of $617 pay per month for 2 months, extra duty for 45 days, and restriction for 45 days. g. On 7 December 2005, he accepted a second field grade Article 15 for fleeing apprehension by military police. His punishment included forfeiture of $571 per month for 2 months and extra duty and restrictions starting on 18 December 2005 after the end of his punishment from his first nonjudicial punishment. h. On 14 December 2005 he underwent a physical examination and was found qualified for retention or separation under Army Regulation 40-501 (Standards of Medical Fitness). i. On 9 January 2006, he was evaluated by a clinical neuropsychologist because his company commander referred him to behavioral health for a mental health evaluation in compliance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). He was being considered for administrative separation for misconduct. Upon the conclusion of his evaluation, the neuropsychologist found him mentally responsible for his behavior, that he could distinguish right from wrong, and that he possessed sufficient mental capacity to participate in administrative and judicial proceedings. He met the retention requirements of Army Regulation 40-501. The neuropsychologist concluded he had the mental capacity to understand and participate in administrative proceedings. j. On or about 25 January 2006 he received written notification his company commander was initiating administrative separation action under Army Regulation 635- 200, paragraph 14-12c, for commission of a serious offense, wrongful use of cocaine. He was advised of his rights and acknowledged receipt of his commander’s separation initiation action. k. He met with military counsel and waived his right to submit statements on his own behalf. He acknowledged he understood the reason for his administrative separation and the impact a less than honorable discharge would have post service. l. The separation approval authority, his brigade commander, approved his company commander’s recommendation and endorsements to administratively separate him for misconduct, commission of a serious offense under paragraph 14-12c of Army Regulation 635-200. The approval authority directed issuance of a General Discharge Certificate with his character of service as general, under honorable conditions. m. On 13 February 2006, personnel at Fort Lewis issued Orders 044-0025 discharging him from the Regular Army on 23 February 2006. n. Accordingly, on 23 February 2006 he was discharged from the Regular Army receiving a DD Form 214 documenting his active service. In pertinent part, his DD Form 214 records the following facts at the time of his separation: * Block 24 (Character of Service) – under honorable conditions (general) * Block 25 (Separation Authority) – Army Regulation 635-200, paragraph 14- 12c * Block 26 (Separation Code) – JKQ * Block 28 (Narrative Reason for Separation) – misconduct (serious offense) o. On 3 October 2018, after his application to the ADRB with the support of counsel, the ADRB voted unanimously to upgrade his discharge character of service to honorable. The ADBR determined his discharge was inequitable based on his length of service and quality of service, to include his combat service. During the board a medical officer presented evidence that his service-connected PTSD diagnosis was a nexus for his acts of misconduct. The board also changed his separation authority and his separation code. He was issued a new DD Form 214 by staff at the Army Review Boards Agency on 11 December 2012. His initial DD Form 214 was voided. In pertinent part, his newly issued DD Form 214 shows: * Block 24 (Character of Service) – honorable * Block 25 (Separation Authority) – Army Regulation 635-200, paragraph 14- 12a * Block 26 (Separation Code) – JKN * Block 28 (Narrative Reason for Separation) – misconduct (minor infractions) 4. When he applied to the ADRB, he provided his VA benefits summary dated 9 September 2015 showing his service-connected medical condition, PTSD, was rated 100 percent effective 24 July 2015. As he had fulltime employment at the time, his entitlement to individual unemployment was terminated effective 24 July 2015. With his ABCMR application, he provided an updated VA benefits summary dated 7 November 2016 showing he was still rated 100 percent service-connected disabled. 5. 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. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) prescribes 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. Effective 19 January 2017, the DES legacy process will be used for Army Veterans referred to the DES by the Army Board for Correction of Military Records (ABCMR). The Secretary of the Army or designee approves requests for legacy processing on a case-by-case basis. The VA Form 21-0819 (DoD Referral to Integrated Disability Evaluation System (IDES)) will not be used, to include cases referred by the ABCMR when the applicant does not have an active status in the U.S. Army. The VA will not conduct the examination upon which the MEB findings are based. Instead, the MEB convening authority will assign a physician or physicians to conduct the required examination(s). The examinations will meet the minimum criteria of the VA medical examinations. Medical conditions evaluated during the DES will solely consist of those conditions for which a P3/P4 profiles was approved and any other conditions which the physician conducting the MEB finds individually or in combination are not likely to meet medical retention standards. Cases referred by the ABCMR address conditions in the context of their status at the time of the Veteran’s separation. 7. 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 at less than 30 percent. 8. 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. 9. Title 38, Code of Federal Regulations, 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. 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 his service record indicates he completed a mental status evaluation on 9 January 2006. He was found to meet retention standards and was cleared for administrative action. His separation packet indicates he completed a separation physical and was cleared for administrative separation. b. A review of the VA's Joint Legacy Viewer indicates the applicant has received treatment in the VA system since April 2011. On 22 April 2011, he reported full time employment as an export broker since leaving the military. He reported increased stress as his live-in girlfriend was unemployed and he worked evenings to help out his mom’s business. He was diagnosed with Adjustment Disorder with mixed emotions. c. On 2 May 2011, he was evaluated by a psychiatrist and diagnosed with Major Depressive Disorder. On 24 May 2012, he was diagnosed with PTSD, Undifferentiated Somatoform Disorder, and Anxiety Disorder, not otherwise specified. Effective 30 May 2012, he received 70% service connected disability rating for PTSD. His rating was increased to 100% effective 24 July 2015. d. There is documentation to support a behavioral health diagnosis at the time of his discharge. He was evaluated and met retention standards at the time of his discharge. It is acknowledged that the applicant has a service-connected disability for PTSD. This determination alone, however, does not automatically mean that military medical disability/retirement is warranted. It is important to understand that the VA operates under different rules, laws, and regulations when assigning disability percentages than the Department of Defense (DoD). In essence, the VA will compensate for all disabilities felt to be unsuiting. The DoD does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting. In addition, the role of compensating for post-separation progression or complications of service-connected conditions was granted by Congress to the Department of Veterans Affairs and not a function or role of the DoD. Medical retirement/disability is not warranted. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board found insufficient evidence to support a conclusion that the applicant had a behavioral health condition that did not meet retention standards prior to his discharge. He underwent all required medical examinations prior to his separation and none of those examinations uncovered a disabling condition that warranted his referral to the DES. Based on a preponderance of evidence, the Board determined the applicant's discharge for misconduct 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 ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) prescribes 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. It implements the requirements of Title 10, U.S. Code, chapter 61; Department of Defense Instructions (DoDI) 1332.18 (Disability Evaluation System (DES)); DoD Manuel 1332.18 (DES Volumes 1 through 3) and Army Directive 2012-22 (Changes to Integrated Disability Evaluation System Procedures) as modified by DoDI 1332.18. a. The Surgeon General of the Army will establish and interpret medical standards for retaining Soldiers on active duty. b. The objectives are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits to eligible Soldiers whose military service is terminated because of a service-connected disability; provide prompt disability evaluation processing ensuring the rights and interests of the Government and Soldier are protected; and, establish the Military Occupational Specialty Administrative Retention Review (MAR2) as an Army pre-DES evaluation process for Soldiers who require a P3 or P4 (permanent profile) for a medical condition that meets the medical retention standards of Army Regulation 40-501. c. Public Law 110-181 defines the term, physical DES, as a system or process of the DoD for evaluating the nature and extent of disabilities affecting members of the Armed Forces that is operated by the Secretaries of the military departments and is composed of medical evaluation boards, physical evaluation boards, counseling of Soldiers, and mechanisms for the final disposition of disability evaluations by appropriate personnel. d. The DES begins for a Soldier when either of the events below occurs: (1) The Soldier is issued a permanent profile approved in accordance with the provisions of Army Regulation 40–501 and the profile contains a numerical designator of P3/P4 in any of the serial profile factors for a condition that appears not to meet medical retention standards in accordance with AR 40–501. Within (but not later than) 1 year of diagnosis, the Soldier must be assigned a P3/P4 profile to refer the Soldier to the DES. (2) The Soldier is referred to the DES as the outcome of MAR2 evaluation. e. A medical evaluation board is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per Army Regulation 40-501. This board may determine a Soldier’s condition(s) meet medical retention standards and recommend the Soldier be returned to duty. This board must not provide conclusions or recommendations regarding fitness determinations. f. The physical evaluation board (PEB) determines fitness for purposes of Soldiers’ retention, separation or retirement for disability under Title 10, U.S. Code, chapter 61, or separation for disability without entitlement to disability benefits under other than Title 10, U.S. Code, chapter 61. The physical evaluation board also makes certain administrative determinations that may benefit implications under other provisions of law. The PEB is not a statutory board. It is a fact finding board evaluating the physical condition of the Soldier against the physical requirement of the Soldier’s office, grade, rank or raring. g. The PEB may permanently retire a Regular Army Soldier if he has at least 20 years of service as defined in section 1208, Title 10, U.S. Code. h. Unless reserved for higher authority, the U.S. Army Physical Disability Agency approves disability cases for the Secretary of the Army and issues disposition instructions for Soldiers separated or retired for physical disability. i. The DES legacy process will be used for Army Veterans referred to the DES by the Army Board for Correction of Military Records (ABCMR). The Secretary of the Army or designee approves requests for legacy processing on a case-by-case basis. The VA Form 21-0819 (DOD Referral to Integrated Disability Evaluation System (IDES)) will not be used, to include cases referred by the ABCMR when the applicant does not have an active status in the U.S. Army. The VA will not conduct the examination upon which the MEB findings are based. Instead, the MEB convening authority will assign a physician or physicians to conduct the required examination(s). The examinations will meet the minimum criteria of the VA medical examinations. Medical conditions evaluated during the DES will solely consist of those conditions for which a P3/P4 profiles was approved and any other conditions which the physician conducting the MEB finds individually or in combination are not likely to meet medical retention standards. Cases referred by the ABCMR address conditions in the context of their status at the time of the Veteran’s separation. 3. Army Regulation 40-501 (Standards of Medical Fitness) effective 19 January 2017 provides information on medical fitness standards for induction, enlistment, appointment, retention, retirement and related policies and procedures. Chapter 3 describes the various medical conditions and physical defects which may render a Soldier unfit for further military services. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier’s performance of duty; may compromise or aggravate the Soldier’s health or well-being, if they were to remain in the military Service such as frequent clinical monitoring; may compromise the health or well-being of other Soldiers; and may prejudice the best interest of the Government if the individual were to remain in the military Service. Soldiers who do not meet the required medical standards will be evaluated by a medical evaluation board. a. The general policy states that possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Service. Physicians are responsible for referring Soldiers with conditions in this chapter to a medical evaluation board. b. Paragraph 3–32 refers to mood disorders and paragraph 3-33 refers to anxiety, somatoform, or dissociative disorders may be referred to a medical evaluation board providing the following criteria is met: * persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization * persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment * persistence or recurrence of symptoms resulting in interference with effective military performance 4. Title 38, U.S. Code, section 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. 5. Title 38, U.S. Code, section 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. 6. Army Regulation 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 considers individual applications that are properly brought before it. In appropriate cases, it direct or recommend correction of military record(s) to remove an error or an injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. It begins its consideration of each case with the presumption of administrative regularity meaning what Army personnel did at the time of the Soldier’s or Veteran’s area of service was administratively correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005657 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1