IN THE CASE OF: BOARD DATE: 28 June 2022 DOCKET NUMBER: AR20210014326 APPLICANT AND COUNSEL REQUEST: in effect, a physical disability retirement vice separation for a condition, not a disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s Brief with List of Exhibits * Exhibit A – DD Form 214 (Certificate of Release or Discharge from Active Duty) * Exhibit B – Operation Reports * Exhibit C – Narrative Summary, 2 February 2006 * Exhibit D – Movement Request Memorandum, 11 January 2006 * Exhibit E – Standard Form (SF) 600 (Chronological Record of Medical Care), 28 February 2006 * Exhibit F – SF 600, 3 March 2006 * Exhibit G – SF 600, 17 March 2006 * Exhibit H – DA Form 3822-R (Report of Mental Status Evaluation), 8 May 2006 * Exhibit I – DA Form 4856 (Developmental Counseling), 19 May 2006 * Exhibit J – DA Form 2808 (Report of Medical Examination), 23 May 2006 * Exhibit K – DA Form 2807-1 (Report of Medical History), 20 May 2006 * Exhibit L – SF 513 (Consultation Sheet), 17 August 2006 * Exhibit M – Nursing Assessment * Exhibit N – Memorandum to Clear, 17 August 2006 * Exhibit O – Department of Veterans Affairs (VA) Rating Decision, 25 May 2007 * Exhibit P – Personal Affidavit, 28 June 2021 * Exhibit Q – Kurta Memorandum, 25 August 2017 * Exhibit R – Operation Report, 18 December 2006 * Exhibit S – Post-Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire (DBQ), 2 May 2014 * Exhibit T – PTSD DBQ Extract, 14 April 2014 * Exhibit U – Eye Conditions DBQ, 6 September 2014 * Exhibit V – Traumatic Brain Injury (TBI) DBQ, 4 August 2014 * Exhibit W – TBI DBQ, 9 January 2019 * Exhibit X – Knee and Lower Leg Conditions DBQ, 19 February 2013 * Exhibit Y – SF 600, 14 March 2006 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. Counsel states he and the applicant are requesting the service record be corrected to reflect a medical retirement under 10 U.S.C. § 1201. The applicant incurred post- traumatic stress disorder (PTSD), a closed head injury, and lower leg injury in combat. These injuries exceed the 30% threshold for award of a medical retirement. Counsel further notes, in part: a. The applicant served honorably in two tours in Iraq and one in Afghanistan during his four years of active service. On 2 January 2006, the applicant was involved in an improvised explosive device (IED) blast while serving as the designated marksman and lead vehicle driver for an EOD escort team in Iraq. As a result of the blast, the applicant suffered an open right tibial fracture with peroneal nerve damage, a closed head injury and a temporary loss of consciousness. He was extricated from his vehicle and his leg was fixed in place. The applicant was then taken to Baghdad where he underwent a CT scan for his closed head injury, an initial debridement of his right leg injury, and placement of an external fixator. He received a Purple Heart for his injuries. He was subsequently transferred to Landstuhl Regional Medical Center to undergo a second CT scan to rule out seizures and they determined the applicant did not suffer from seizure disorder, but instead was experiencing seizures secondary to morphine. The medical treatment was then focused primarily on his right leg; an intermedullary exchange nail was placed in his right tibia to address non-union, and he was given a front compartment release with medial and lateral open fasciotomy wounds. The applicant was returned Stateside to the Blanchfield Army Community Hospital (BACH) at Fort Campbell, KY, where he continued his care through 2 February 2006 and upon discharge, placed on convalescent leave. He was treated for PTSD and adjustment disorder with anxiety, in addition to the impacts associated with his closed head injury at Behavioral Health during his time at BACH. b. On 27 February 2006, the applicant’s convalescent leave was scheduled to end, but according to his medical records, he inadvertently overdosed on his prescribed Methadone in an attempt to reduce his right leg pain. He showed up for physical therapy sedated, with slurred speech, and somnolent. He was taken to the BACH emergency department for a toxic overdose evaluation, and on 3 March 2006 he was discharged from the hospital. The applicant continued to have significant challenges with pain in his leg and PTSD following his discharge. On 19 May 2006, the applicant was informed that because his PTSD, opioid dependence, and multiple combat injuries made him "non- deployable ... with an elongated recovery process," he was being recommended for an early administrative discharge for a “Condition, Not a Disability” pursuant to Army Regulation 635-200, Chapter 5-17. c. On 24 May 2006, the applicant underwent a separation physical where he noted trauma to right leg and ankle secondary to IED, chronic neck pain, and anxiety/depression/PTSD. The separation physical indicated the applicant’s right leg injury merited a temporary profile due to reduced range of motion, difficulty with running and long-distance walking, difficulty squatting and lifting, and numbness/tingling, in addition to the applicant suffering from PTSD. His PTSD was not relieved by treatment or therapy, in addition to suffering from anxiety, depression, and a history of insomnia. Despite the limitations noted, and the fact that they were caused by his combat-related disabilities, the separation examiner indicated the applicant was “qualified” for further service and thus, administrative separation. Separation proceedings were initiated on the applicant on 9 August 2006 and by 31 August 2006 the applicant was honorably discharged for a condition, not a disability. d. The applicant underwent several Compensation and Pension (C&P) exams with the Department of Veterans Affairs (VA) following his discharge. The applicant was awarded 100% for PTSD, 30% for status post open fracture of the right tibia and fibula with intramedullary rod and screw fixation, and 10% for his closed head injury, the day following his discharge. The Army’s decision to separation the applicant administratively for a condition, not a disability was an error. There is ample evidence in the record that the applicant suffered from PTSD, head and neck trauma, and a severe right leg injury which all resulted from a combat injury. He should have been referred through the Disability Evaluation System (DES) process which could have resulted in a finding of “unfit for duty,” a combined disability rating of 30% or higher, and a medical retirement with Tricare benefits. In light of the facts presented, counsel and the applicant request the service record be corrected to show he should have qualified for disability retirement at the time of his active duty discharge in 2006. The applicant should have been retired from the military after having been found unfit for further military service due to PTSD, closed head injury, chronic neck pain, and lower right leg injury, that collectively would have received far more than a 30% disability rating. At the very least, the applicant should be referred into the DES to ensure his injuries are properly evaluated by a Physical Evaluation Board (PEB) for medical retirement. 3. The applicant and his counsel provide: a. The below listed documents to be referenced in the service record: * Exhibit A – DD Form 214 effective 31 August 2006 * Exhibit H – DA Form 3822-R, 8 May 2006 * Exhibit I – DA Form 4856, 19 May 2006 * Exhibit J – DA Form 2808, 23 May 2006 * Exhibit K – DA Form 2807-1, 20 May 2006 * Exhibit N – Memorandum to Clear, 17 August 2006 b. The applicant’s medical records include: * Exhibit B – Operation Reports * Exhibit C – Narrative Summary, 2 February 2006 * Exhibit D – Movement Request Memorandum, 11 January 2006 * Exhibit E – SF 600, 28 February 2006 * Exhibit F – SF 600, 3 March 2006 * Exhibit G – SF 600, 17 March 2006 * Exhibit L – SF 513, 17 August 2006 * Exhibit M – Nursing Assessment * Exhibit R – Operation Report, 18 December 2006 * Exhibit Y – SF 600, 14 March 2006 c. Disability benefits questionnaires included: * Exhibit S – PTSD DBQ, 2 May 2014 * Exhibit T – PTSD DBQ Extract, 14 April 2014 * Exhibit U – Eye Conditions DBQ, 6 September 2014 * Exhibit V – TBI DBQ, 4 August 2014 * Exhibit W – TBI DBQ, 9 January 2019 * Exhibit X – Knee and Lower Leg Conditions DBQ, 19 February 2013 d. A VA Rating Decision (Exhibit O), dated 25 May 2007, notified the applicant he was granted service connection for the below listed disabilities, in addition to those denied: * PTSD – 100% * status post open fracture of the right tibia and fibula with intramedullary rode and screw fixation and status post fasciotomy – 30% * closed head injury – 100% * bilateral hearing loss – denied * lumbar spine condition – denied * cervical spine condition – denied * peroneal nerve damage to the right lower extremity – denied * Eustachian tube dysfunction – denied * weight loss – denied * anemia – denied * amnesia – denied * tender scar on the right lower extremity – denied e. A personal affidavit (Exhibit P) from the applicant, dated 28 June 2021, indicating he submitted an application to National Volunteer Legal Services Program ("NVLSP") requesting their assistance. In 2019 NVLSP requested his C-File. They received a copy on November 5, 2019 and following their review of his C-File they informed him that his separation for a "Condition Not a Disability" was an error. f. The Kurta Memorandum (Exhibit Q), dated 25 August 2017, will be listed among the references. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 31 July 2002. He held military occupational specialty 25Q (Multi-Channel Switching Systems Operator/Maintainer). b. A DD Form 2808, dated 21 March 2002, shows the applicant was undergoing an examination for the purpose of enlistment. The applicant’s clinical evaluation was marked normal. The physician documented scoliosis, ingrown toenails, and his body mass index (BMI). In Block 74a (Examinee/Applicant) he was marked qualified for service. c. His Enlisted Record Brief does not capture his foreign service; however, his DD Form 214 shows he served on three deployments. * Afghanistan from 3 February 2003 to 28 August 2003 * Kuwait/Iraq from 5 December 2003 to 1 June 2004 * Kuwait/Iraq from 28 September 2005 to 1 January 2006 d. A DA Form 3822-R, dated 8 May 2006, shows the applicant was being seen and evaluated at the Department of Behavioral Health since February 2006. On 2 January 2006, he was injured by an IED. He suffered a closed head wound, a right tibia fracture and a right fibula fracture. Since the injury, he has exhibited symptoms consistent with PTSD to include recurrent and intrusive recollections of the event, distressing dreams about the event, irritability, hypervigilance, exaggerated startle response and difficulty concentrating. The physician noted in the remarks, the applicant was diagnosed in accordance with Axis 1, PTSD and opioid dependence and Axis III, right tibia fracture, right fibula fracture, and post-concussive syndrome. The applicant was recommended for separation per Chapter 5-17. The evaluation further indicated: * normal behavior and fully alert * fully oriented and unremarkable * clear thinking process, normal thought content, and good memory * he had the mental capacity to understand and participate in the proceedings * he was mentally responsible * he met the retention requirements of AR 40-501, Chapter 3 e. On 19 May 2006, the applicant received a DA Form 4856 for recommendation for separation per Chapter 5-17. The applicant had been referred for separation based on his mental health evaluation. The applicant signed the back and marked agreed. f. The service record includes the applicant’s medical evaluations for the purposes of separation. The applicant identified medical challenges with his right shoulder, back pain, bottom of left foot, knee pain, stress weight loss, among other listed challenges. The applicant was marked qualified for service. The physician further noted he had no significant disqualifying conditions and met the retention criteria; there were no medical contraindications and he was cleared to proceed with separation proceedings. * DD Form 2697 (Report of Medical Assessment), 20 May 2006 * DD Form 2807-1 (Report of Medical History), 20 May 2006 * DD Form 2808 (Report of Medical Examination) g. A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) shows on 8 August 2006, a flag was initiated on the applicant for elimination proceedings effective 1 August 2006. h. On 17 August 2006, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), Chapter 5-17, for other designated physical or mental conditions. He acknowledged receipt of the notification of separation action on 22 August 2006. i. On 22 August 2006, after consultation with legal counsel, he acknowledged: * the rights available to him and the effect of waiving said rights * he understood he would receive an honorable discharge * he was ineligible to apply for reenlistment in the U.S. Army for two years after discharge j. The immediate commander initiated separation action against the applicant for other designated physical or mental conditions. The commander indicated that this action was based on the applicant’s diagnosis of PTSD and opioid dependence by a military psychiatrist. The commander recommended an honorable discharge and the intermediate commanders concurred with the recommendation. k. On 25 August 2006, the separation authority approved the discharge recommendation for immediate separation under the provisions of AR 635-200, Chapter 5-17, for other designated physical or mental conditions. He would be issued an Honorable Discharge Certificate. l. Orders 240-0602, dated 28 August 2006, discharged the applicant from active duty with an effective date of 31 August 2006. m. He was honorably discharged from active duty on 31 August 2006. His DD Form 214 shows he was discharged in accordance with chapter 5-17 of AR 635-200. He completed 4 years and 24 days of active service. He was assigned separation code JFV and the narrative reason for his separation listed as “Condition, Not a Disability.” n. Two DD Forms 215 (Correction to DD Form 214) were issued following his discharge: * 24 December 2012 (VOID) – Add Purple Heart * 21 September 2020 – Add Purple Heart and Joint Service Commendation Medal 5. The applicant's service record was void of documentation that shows he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 6. By regulation (AR 635-200), action will be taken to separate a Soldier for other physical or mental conditions not amounting to disability (AR 635-40) and excluding conditions appropriate for the separation processing under paragraph 5-11 or 5-13 that potentially interfere with assignment to or performance of duty. 7. By regulation (AR 635-5), 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). 8. 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 “JFV” the narrative reason as “Condition, Not a Disability,” by regulatory authority AR 635-200, paragraph 5-17. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting, through counsel, a referral to the Disability Evaluation System. Counsel states: “The Service Member’s post- traumatic stress disorder, closed head injury, and lower leg injury incurred in combat meet or exceed the 30% threshold for an award of medical retirement. b. Counsel is correct. c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of service under consideration shows he entered the regular Army on 31 July 2002 and was inappropriately discharged on 31 August 2006 under the separation authority provided by paragraph 5-17 of AR 635-200, Active Duty Enlisted Administrative Separations (6 June 2005): Other designated physical or mental conditions. His separation code JFV denotes “Condition, Not A Disability.” d. The DD 214 shows three periods of Service in imminent danger pay areas: Afghanistan from 3 February 2003 thru 28 August 2003; Kuwait/Iraq from 5 December 2003 thru 1 June 2004; and in Kuwait/Iraq from 28 September 2005 thru 1 January 2006. It shows he was awarded both the Purple Heart and Combat Action Badge. e. Paragraph 5-17a of AR 635-200: Commanders specified in paragraph 1–19 may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (AR 635–40) and excluding conditions appropriate for separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to—(1) Chronic airsickness; (2) Chronic seasickness; (3) Enuresis; (4) Sleepwalking; (5) Dyslexia; (6) Severe nightmares; (7) Claustrophobia; (8) Other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the soldier’s ability to effectively perform military duties is significantly impaired. f. The applicant sustained an open comminuted right tibia fracture in an improvised explosive device (IED) attack on 2 January 2006. He subsequently underwent several orthopedic procedures on his injured extremity, and was eventually medically evacuated to Blanchfield Army Community Hospital on Fort Campbell, KY O/A 11 January 2006 g. Review of his encounters in AHLTA shows his first behavioral health visit was on 25 January 2006: Chief Complaint is: Adjustment disorder vs PTSD: Pt {patient} is being seen on the inpatient ward for combat related trauma. He is having insomnia, nightmares and some anxiety related to his situation. Pt has been started on some medication to address his problem. Pt is concerned about the fact he killed 6 people during his duty. No risk issues. All these problems have occurred in the past 30-45days h. During treatment for his right leg injury, and possibly due to his PTSD symptoms, the applicant developed and opioid dependency. On 28 February 2006, he was admitted to the intensive care unit (ICU) at Blanchfield Army Community Hospital (BACH) after overdosing(OD) on methadone: “SM {service member} was admitted to ICU/BACH about noon 28/02/06 following an unintentional OD of Methadone. SM said he didn't want to hurt or kill himself but rather stop the pain. Yesterday, his fiancé brought him to a Clinic here at BACH where it was noted SM was lethargic, sedated and could barely talk or function and he was subsequently admitted. i. The applicant went absent without leave from 8-13 March 2006. He returned voluntarily and was seen at the clinic the day of his return: “The final straw he states was that he was ordered to stay in the barracks because it was felt that he needed a battle buddy and he wanted to go stay in his apartment. He has been staying with his girlfriend but decided today to come back. He states he is not sleeping, is losing weight, and has anxiety. He is requesting sleep and anti-anxiety medication today. He denies that he is a threat to self or others. The patient denies he is a threat to anyone is his unit and states he will go AWOL again if it will get him out of the Army.” j. There is no evidence of negative actions related to this episode, one which his PTSD clearly mitigates. k. When seen on 15 March 2006 his diagnosis was adjustment disorder with anxiety. The diagnosis of chronic PTSD was added on 27 March 2006. l. By his 8 May 2006 behavioral visit, it was clear his PTSD was preventing his return to full Soldiering: “Patient reports he is still anxious, has a fear that he will lose self- control of his emotions and become violent, anger, irritable, still having flashbacks about the event when he was injured. He attributes his anger to being in a military environment. "I'm broken and I can't do my job anymore." m. Rather than take care of their Soldier by referring him to the Disability Evaluation System for his combat related injuries, his chain of command erred in deciding to discharge him under paragraph 5-17 of AR 635-200. From his company commander’s 19 May 2006 counseling statement: (1) SPC {Applicant}, on 15 May 2006, receipt of your Mental Evaluation Report was received from Department of Behavioral Health, Blanchfield Community Hospital, Ft Campbell, KY. Results of your findings, annotated on DA Form 3822-R, indicate you suffer from Posttraumatic Stress Disorder and Opioid Dependence, in addition to injuries you sustained while deployed in Iraq. In lieu of these findings, your mental stability may impair your ability to control your thinking, emotions or behavior, as well as, effectively performing your military duties. Your condition has placed you in a non- deployable status, with an elongated recovery process, and a recommendation for separation. (2) In agreement, as your Rear Detachment Commander, I am further recommending you for separation IAW AR 635-200, Chapter 5-17 and AR 635-40, with an Honorable Discharge. n. As noted above, paragraph 5-17 states discharge under this paragraph is only authorized for “mental conditions not amounting to disability.” This statement reveals that the applicant’s combat related PTSD failed the medical retention standard in paragraph 3-33c of AR 40-501, Standards of Medical Fitness (29 August 2003): “3–33. Anxiety, somatoform, or dissociative disorders. The causes for referral to an MEB are as follows: …(a). Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or (b). Persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or (c). Persistence or recurrence of symptoms resulting in interference with effective military performance.” o. His chain of command further failed their Soldier by not following Army Regulations. Paragraph 7-1 of AR 40-400, Patient Administration, states in part: “If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the physical evaluation board liaison officer (PEBLO).” p. AHLTA shows the applicant was hospitalized for his PTSD for several days in the first week of July 2006. He was hospitalized a second time for treatment of his PTSD in August 2006. q. His right leg fracture healed but continued to be painful. From his 21 June 2006 AHLTA encounter: 21-year-old male who is here for ongoing leg pain despite Ultram. He was given 30 Ultram over a month ago. He still has a couple of tablets left. When he takes the Ultram is still has an aching pain in his right lower extremity, primarily in his ankle. He has tried methadone and Percocet that he did not tolerate all that well.” r. Review of his records in JLV confirms the applicant has been diagnosed with and granted a 70% service connected disability rating for PTSD. He also has ratings for migraine headaches (possibly post-traumatic from his IED TBI) and several ratings for his right leg injury. The applicant clearly had a multiple medical conditions incurred in his Service to the United States Army which failed medical retention standards and for which he should have been referred to the DES. It is the strong opinion of the ARBA Medical Advisor that a referral of his case to the Disability Evaluation System is warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that some relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. Based upon the preponderance of the evidence, the Board agreed the applicant’s record should be referred to the Office of the Surgeon General for medical evaluation consideration, with all relief dependent upon a final medical determination. The applicant clearly had a multiple medical conditions incurred in service which failed medical retention standards and for which he should have been referred to the disability evaluation system. While his request for medical retirement is premature, the Board determined a referral of his case to the Disability Evaluation System is certainly warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Legacy Disability Evaluation System (DES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the DES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains changing his type of discharge without evaluation under the IDES. 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 635-200 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel. Chapter 5-17 of the regulation states a Soldier may be separated for other physical or mental conditions not amounting to disability (AR 635-40) and excluding conditions appropriate for the separation processing under paragraph 5-11 or 5-13 that potentially interfere with assignment to or performance of duty. 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. 3. Army Regulation 635-5 (Separation Documents), 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). 4. Army Regulation 635-5-1 (Separation Program Designator Codes), 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 “JFV” the narrative reason as “Condition, Not a Disability,” by regulatory authority AR 635-200, paragraph 5-17. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014326 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1