IN THE CASE OF: BOARD DATE: 16 March 2022 DOCKET NUMBER: AR20210008581 APPLICANT REQUESTS: * in effect, a change in the narrative reason for his separation to reflect a medical discharge/retirement * upgrade of his uncharacterized discharge to honorable * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Two DD Forms 149 (Application for Correction of Military Record) * Two DD Forms 293 (Application for the Review of Discharge from the Armed Forces of the United States * Three Self-Authored Statements * Physician Letter dated 7 November 2018 * Progress Note dated 26 August 2020 * Two Employment Denial Letters * Four Department of Veterans Affairs (VA) Letters/Decisions * Loan Discharge Letter dated 28 October 2020 * Army Discharge Review Board (ADRB) Letter dated 3 February 2021 * Case Report and Directive dated 2 December 2020 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 he is requesting a review of the characterization of his service. He believes he was potentially eligible for military severance/retirement benefits and a discharge characterization of honorable for his service to his country. a. He began working with the U.S. Army as an interpreter from 2006 through 2013. He was one of the Army’s trusted translators and an Iraqi National when he traveled to the United States in 2014 and decided to join the U.S. Army to continue his service. Due to his family obligations, the transition, and his schooling, he was unable to complete the enlistment process until July 2017. He received his first orders to Fort Jackson for Basic Combat Training (BCT). He was 99% complete when he injured his left knee after two months of a stress fracture. He was sent home for convalescent leave to help in his healing. He returned to Ft. Jackson and was sent to the “Reception Holding Unit” (RHU) awaiting clearance. Captain (CPT) examined him and informed him that she had no other option than to discharge him due to his injury. She explained that it was by no fault of his own, but his injury required a minimum of 6 months to heal and one month was not enough. b. He was stressed out because a dream he had 7 years ago had faded with no outcome. His family depended on a future with his military career and he now had nothing. He received his discharge documents with an uncharacterized characterization of service. He is a very educated man with a Doctorate of Pharmacy, a master’s degree in Pharmaceutical Science, and a PhD candidate, but is unable to get employment due to the uncharacterized discharge. He can no longer work as a volunteer due to his knee injury and remains under rehab and physical therapy. The discharge and the knee injury have complicated matters in employment and his ability to renew his license with the pharmacy board. Due to lack of personal experience, he was not given enough time to understand the outcome of his discharge from the military. An upgrade of his discharge would give him another chance to serve his country, whether military or civilian. c. He is currently receiving disability compensation at 100% from the VA due to his injury. The injury was not as a result of a pre-existing condition and he continues to receive medical treatment. He was given an uncharacterized discharge and was presumed in “sound condition” for service. He served faithfully as a contract interpreter for the U.S. Army and on one occasion was treated for anxiety at the Baghdad International Airport in a U.S. Army medical hospital. He served honorably and with no physical or psychological issues until he injured his knee. Any anxiety experienced at Ft. Jackson was related to the financial uncertainty and life plan changes due to his knee injury. He continues to experiences difficulties with employment and licensure due to the character of his service and believes that he was incorrectly discharged. He reiterates that he feels he is potentially eligible for military severance/retirement benefits and a change in the characterization of his discharge to reflect honorable. 3. The applicant provides: a. A letter from Dr. , dated 7 November 2018, indicated the applicant had an intellectual disability, severe physical disability or psychiatric disability, and could only be considered for employment under Schedule A hiring authority, 5 CFR 213, 3102(u). b. A Progress Note, dated 26 August 2020, identified the applicant as a patient of the Columbus VA with a documented disability by the U.S. Equal Employment Opportunity Commission (EEOC) as a targeted disability. He was eligible and ready for employment under Schedule A hiring authority, 5 CFR 213, 3102(u). c. Two letters informing the applicant he was not qualified (medically or otherwise) for positions he had applied for: * Department of Homeland Security, U.S. Customs and Border Protection * VA as a Medical Reimbursement Technician dated 30 September 2020 d. Four VA decisions/letters: * 23 April 2020 – granted benefits based on his limitations as a result of his service connected conditions which result in a vocational impairment and employment handicap * 27 August 2020 – outlined options based upon a mutually agreed upon rehabilitation plan * 1 April 2021 – totally and permanently disabled due to his service-connected disabilities effective 8 July 2020 with 70% for generalized anxiety disorder with panic attacks and other specified depressive disorder, 10% for left hip and thigh stress reaction with painful extension, and 10% plica-syndrome, with history of shin splits, 2 conditions rated at 0% * 17 July 2021 – cut-out card verifying the applicant’s honorable service e. A letter, dated 28 October 2020, notified the applicant he was approved for loan discharge based on total and permanent disability. f. The ADRB letter with Case Report and Directive to be addressed in the applicant’s service record. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 1 August 2017. b. The applicant underwent a medical evaluation for the purpose of enlistment which indicated he had no significant medical issues with the exception of marking “yes” to generally in good health. The physician noted he had no chronic or acute problems. * DD Form 2807-1 (Report of Medical History) dated 14 June 2011 * DD Form 2807-2 (Medical Prescreen of Medical History Report) * DD Form 2808 (Report of Medical Examination) dated 14 June 2011 c. A DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 1 December 2017, shows after careful consideration of medical records, laboratory, findings, and medical examinations, the board found that the service member was medically unfit for appointment or enlistment in accordance with current medical fitness standards and in the opinion of the evaluating physicians, the condition(s) existed prior to service. The findings included the reported a previous treatment history, for symptoms, suggestive of an anxiety disorder and depressive disorder since 17 years old. The applicant’s symptoms caused significant emotional and social impairment which interfered with his ability to train effectively. The findings were approved by the medical approving authority on 4 December 2017 and the applicant concurred with the proceedings on 6 December 2017. The separation authority took action 11 December 2017 and directed the applicant be discharged. d. Orders 347-1315, dated 13 December 2017, discharged the applicant from active duty with an effective date of 15 December 2017. e. On 15 December 2017, he was discharged from active duty with an uncharacterized characterization of service. His DD Form 214 shows he completed 4 months and 15 days of active service. He was assigned separation code JFW and the narrative reason for separation listed as “failed medical/physical/procurement standards.” 5. The applicant's service record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 6. On 3 February 2021, the applicant was notified the ADRB reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for a change in the characterization of service and/or narrative reason for his discharge. The Case Report and Directive indicated the record did not contain any indication or evidence of arbitrary or capricious action by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 7. By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 8. By regulation (AR 635-200), Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty (AD) or active duty training (ADT) for initial entry training may be separated. Such findings will result in an entrance physical standards board which must be convened with the Soldier’s first 6 months of AD. 9. By regulation (AR 635-8), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. Block 28 (Narrative Reason for Separation) is based on regulatory or other authority and can checked against the cross reference in AR 635-5-1 (Separation Program Designator (SPD) Codes). 10. By regulation (AR 635-5-1), separation program designator (SPD) codes are three- character alphabetic combinations that identify reasons for, and types of, separation from active duty. The narrative reason for the separation will be entered in block 28 of the DD Form 214 exactly as listed in tables 2-2 and 2-3. Table 2-3 lists for SPD code “JFW” the narrative reason as “Failed Medical/Physical Procurement Standards,” by regulatory authority AR 635-200. 11. By regulation (AR 40-501), medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects are causes for rejection or medical unfitness for these specialized duties. If the profile is permanent the profiling officer must assess if the Soldier meets retention standards. Those Soldiers on active duty who do not meet retention standards must be referred to a medical evaluation board. Once a determination of physical unfitness is made, disabilities are rated using the VA schedule of disability rating. 12. By regulation (AR 635-40), 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. 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: a. 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. b. 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. 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, United States 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, 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/her 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. 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 reversal of the ADRB decision to not upgrade his 20 October 2017 uncharacterized discharge He states: (1) “After I enlisted, I received my first military order to Fort Jackson for Basic Training. I was 99% close to graduation and family day, where I injured my left knee after two months of a stress fracture. Because of that injury, I sent home for convalescent leave to heal up fast, finish my graduation, and leave for AIT {advanced Individual Training}. (2) After finishing my convalescent leave and going back to I was on hold at RHU ‘Reception Holding Unit.’ I was checked by CPT ., she said I have no options other than to get discharge and rejoin again because of my injury! She said, ‘Ricky, it's not your fault your injury didn't get the hell up. It's because you will have to rest for at least 6 months!! And one month is not enough for you to finish your training and graduate’.” b. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of service under consideration shows he entered the regular Army on 1 August 2017 and received an uncharacterized discharged on 15 December 2017 under the separation authority provided by paragraph 5-11 of AR 635-200, Active Duty Enlisted Administrative Separations (19 December 2016): Separation of personnel who did not meet procurement medical fitness standards. c. This request was previously denied in full by the ADRB on 3 February 2021 (AR20180002894). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. This review will concentrate on the new evidence submitted by the applicant. d. No new probative evidence was submitted with the application. e. The applicant’s pre-entrance Report of Medical History and Report of Medical Examination for the period of service under consideration show that other than having mild asymptomatic pes planus (flat feet), he was without significant medical history or conditions f. AHLTA shows the applicant was seen multiple times for left knee pain, eventually diagnosed with bilateral medial tibial plateau stress fractures in September 2017, and was subsequently placed on unit convalescent leave. g. AHLTA shows the applicant first presented for a behavioral health condition on 20 November 2017: (1) “Pt {patient} says he has been on psych meds since 2007. He was sent on convalescent leave for knee pain and then failed final PT test for knee pain and sent on convalescent leave. While on convalescent leave, was taking meds and now he returned to Ft. Jackson and his meds were confiscated. No psych meds since 18NOV17. (2) Pt says he feels if he went without meds for a week he would develop SI {suicidal ideations}. He says that in AMs he is ok because he is busy but wakes up frequently with panic attacks. He does not have any SI now he says. Panic attacks last two days off meds. He says he last felt like he was better off dead a month ago. h. The applicant was referred to an entry physical standards boards (EPSBD) IAW paragraph 5-11a of AR 635-40 for his self-reported mental health condition. These boards are convened IAW paragraph 7-12 of AR 40-400, Patient Administration. This process is for enlisted Soldiers who within their first 6 months of active service are found to have a preexisting condition which does not meet the enlistment standard in chapter 2 of AR 40-501, Standards of Medical Fitness, but does meet the chapter 3 retention standard of the same regulation. The fourth criterion for this process is that the preexisting condition was not permanently service aggravated. i. The EPSBD convened on 1 December 2017. They wrote for her mental health history: (1) “CONDITION: Soldier reports a previous treatment history, for symptoms, suggestive of an anxiety disorder and a depressive disorder, since 17 years old. The Soldier's symptoms caused significant emotional and social impairment and currently (2) DIAGNOSIS: F41.9 Unspecified Anxiety Disorder (EPTS by History), F32.8 Other Specified Depressive Disorder (EPTS by history) (3) IMPACT ON MISSION: This Service Member is assessed to not meet medical procurement standards IA W AR 40-501, Chapter 2, paragraph 2-27d(2) and k. j. Paragraphs 2-27d(2) and 2-27k of AR 40-501, Standards of Medical Fitness (14 June 2017): 2-27d: “Current mood disorders including, but not limited to, major depression (296.2–3), bipolar (296.4–7), affective psychoses (296.8–9), depressive not otherwise specified (311), do not meet the standard. (2) History of symptoms consistent with a mood disorder of a repeated nature that impairs school, social, or work efficiency does not meet the standard.” 2-27k: “Current or history of anxiety disorders (anxiety (300.01) or panic (300.2)), agoraphobia (300.21), social phobia (300.23), simple phobias (300.29), obsessive-compulsive (300.3), other acute reactions to stress (308), and post- traumatic stress disorder (309.81) do not meet the standard.” k. The board determined that his condition had existed prior to service, had not been permanently aggravated by his brief service, and failed the enlistment standards in chapter 2 of AR 40-501. l. The applicant concurred with these findings on 6 December 2017, selecting and initialing the box which stated “I concur with these proceeding and request to be discharged from the US Army without delay.” With the EPSBD’s findings, the applicant was appropriately separated under the authority provided by paragraph 5-11 of AR 635- 200. m. An uncharacterized discharge is given to individuals who separate prior to completing 180 days of military service, or when the discharge action was initiated prior to 180 days of service. This type of discharge does not attempt to characterize service as good or bad. Through no fault of his own, he simply had a medical condition which was, unfortunately, not within enlistment standards. n. It is the opinion of the Agency Medical Advisor neither an upgrade of his discharge nor a referral of her case to the DES is warranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Evidence shows the applicant condition existed prior to service and had not been permanently aggravated by his brief service and failed the enlistment standards. Upon review of the applicant’s petition, available military records and the medical review the Board concurred with the advising official finding insufficient evidence that neither an upgrade of his discharge nor a referral of her case to the DES is warranted. Based on this, the Board denied relief. 2. The Board determined DES compensates an individual only for service incurred 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. 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 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. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's service generally has met, the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-9 (Uncharacterized Discharge) states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status. c. Chapter 5-11 of the regulation states Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty (AD) or active duty training (ADT) for initial entry training may be separated. Such findings will result in an entrance physical standards board which must be convened with the Soldier’s first 6 months of AD. Unless the reason for separation requires a specific characterization, a soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status. 4. Army Regulation 635-8 (Separation Processing and Documents), in effect at the time, states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. Block 28 (Narrative Reason for Separation) is based on regulatory or other authority and can checked against the cross reference in AR 635-5-1 (Separation Program Designator (SPD) Codes). 5. Army Regulation 635-5-1 (Separation Program Designator Codes), in effect at the time, provides separation program designator (SPD) codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The narrative reason for the separation will be entered in block 28 of the DD Form 214 exactly as listed in Tables 2-2 and 2-3. Table 2-3 lists for SPD code “JFW” the narrative reason as “Failed Medical/Physical Procurement Standards,” by regulatory authority AR 635-200. 6. 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. 7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. 8. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 9. 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. 10. 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. 11. 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. 12. 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. 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. 13. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210008581 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1