IN THE CASE OF: BOARD DATE: 14 July 2022 DOCKET NUMBER: AR20210015047 APPLICANT REQUESTS: in effect, a medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Letter, 5 February 2019 FACTS: 1. The applicant states the narrative reason for separation on his DD Form 214 states “Condition, Not a Disability,” but in fact he is 60% disabled and has multiple service- connected disabilities. He received a Chapter 5-17 and he was subsequently informed that it was equivalent to a medical discharge and that he should have been eligible for 100% of his G.I. Bill. He was only awarded 50% due to his DD Form 214 stating his condition was not a disability. He was further instructed to have it reviewed for a change considering he does have service-connected disabilities. 2. The applicant provides: a. A DD Form 214 for his active service period from 7 November 2017 through 5 February 2019. b. A VA letter, dated 5 February 2019, which indicated the applicant received a 60% service-connected disability rating and was not considered totally and permanently disabled. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 7 November 2017. b. The service record includes the applicant’s medical evaluations for the purposes of enlistment which indicated he was generally in good health with the physician documenting he wore glasses. The applicant was marked qualified for service. * DD Form 2807-1 (Report of Medical History) dated 27 September 2017 * DD Form 2807-2 (Accessions Medical Prescreen Report) dated 27 September 2017 * DD Form 2808 (Report of Medical Examination) dated 27 September 2017 c. The Enlisted Record Brief, dated 6 February 2019, showed the applicant did not have significant profile limitations. d. The service record is void of the notification of separation and the applicant’s election of rights. e. On 27 December 2018, 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 expressing suicidal ideations and stating he would be better off dead. The commander recommended an honorable discharge and the intermediate commander concurred with the recommendation. m. On 2 January 2019, the separation authority approved the discharge recommendation for immediate separation under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 5-17, for other designated physical or mental conditions. He would be issued an honorable discharge. n. Orders 016-0003, dated 16 January 2019, discharged the applicant from active duty with an effective date of 5 February 2019. o. He was honorably discharged from active duty on 5 February 2019. His DD Form 214 shows he completed 1 year, 2 months, and 29 days of active service with no lost time. He was assigned separation code JFV and the narrative reason for his separation listed as “Condition, Not a Disability.” 4. The applicant's service record was void of documentation that shows he was treated for an injury or an illness that warranted 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). 5. 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. 6. 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). 7. 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. 8. 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. 9. 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. 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. 10. 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. 11. 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. 12. 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. 13. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests a change in the reason for discharge from ‘condition, not a disability’ to medical disability. a. Pertinent medical records and related (1) 21 September 2017 Accessions Medical Prescreen Report. Revealed no significant issues. (2) 27 September 2017 Report of Medical History (for enlistment). He endorsed being in good health and denied any significant medical history. The 27Sep2017 Report of Medical Exam also showed no significant findings except that corrective lenses must be worn. His physical profile was PULHES 111111. (3) 13 August 2018 VSK BH Multi-D Team. The applicant was Native American (Lumbee Tribe). He self-referred to BH services for help with depression, thoughts of harming himself and learning to cope. He had had no previous contact with BH services on or off post while in service. Prior to service he recalled being in therapy at age 11 after witnessing his aunt being murdered. In later years, he arrived home to find his grandfather dead and another aunt was murdered. He denied history of suicide attempts, inpatient psychiatric hospitalizations or cutting behaviors. He was assessed to have unresolved grief issues from the loss of three close family members. He reported depression symptoms, negative thoughts and thoughts of self-harm. Sometimes his negative thoughts occurred in the context of occupational stressors. He had confessed to Command on that day that he had thoughts of killing himself and they removed his weapon(s). He had no combat deployments, but was deployed in Germany at the time. He denied having any medical problems that would keep him from deployment. He was deemed to meet the retention standards of Chapter 3, AR 40-501 and AR 635-200 for fitness and suitability for continued service. He remained world-wide qualified and was cleared for any TDY or deployment. No alterations to duty status or security clearance were recommended except, he was restricted from carrying his weapon, and as a 31B10 Military Police, he could not perform duties in his MOS. Diagnosis: Disappearance and Death of Family Member. He entered therapy and prior to discharge, his diagnoses included: Adjustment Disorder with Depressed Mood; Adjustment Disorder with Mixed Disturbance of Emotions and Conduct; and Adjustment Disorder with Other Symptoms. (4) Shortly after beginning therapy, he was briefly psychiatrically admitted (1 day admission) to San Bortolo City Hospital, Italy, twice: On 30 August 2018 after superficially cutting wrist veins; and on 30 September 2018 for rule out self-harm. He denied suicide intent, but divulged a prior history of cutting himself at age 15 to relieve acute emotional distress. (5) On 3 October 2018, he underwent a Command Directed Mental Status Evaluation as part of evaluation for a potential administrative separation under AR 635-200, chapter 5-17. He presented with symptoms of an adjustment disorder with depressed mood in the context of multiple ongoing psychosocial stressors, particularly his enlistment in the US Army, ongoing stress within his unit, and frustration with the “Army Lifestyle” and its numerous restrictions. He reported being “lonely”; he was missing loved ones who had passed away; and he had a sense of wanting to act out when he felt irritated or frustrated with his unit. His Mental Status Exam was within normal limits. He was deemed to be mentally responsible, and he was able to distinguish right from wrong and to adhere to the former. Diagnosis: Adjustment Disorder with Depressed Mood, Acute. The disorder was of sufficient severity to interfere with his ability to function in the military. He was assessed to NOT be amenable to BH treatment nor respond to Command efforts at rehabilitation. He met criteria for administrative separation IAW AR 635-200, Chapter 5-17 (Other Designated Mental Health Condition). He was psychiatrically cleared, and an expeditious separation by chapter 5-17 was strongly encouraged at the time. (6) JLV search showed the applicant was total combined service connected at 60% by the VA for the following: Chronic Adjustment Disorder 30%; Lumbosacral or Cervical Strain 20%; Limited Flexion of the Knee; Limited Flexion of the Knee 10%; and Limited Motion of Wrist, Right 10%. The 1 March 2019 DBQs were reviewed for each condition except for the Mental Disorders DBQ which could not be located. The applicant did NOT have a permanent level 3 physical profile for any of the conditions. The 6 February 2019 Enlisted Record Brief showed he passed the APFT on March 2018 with score 229. His physical profile was PULHES 111111. During BH assessments he reported 0/10 pain. Per AHLTA notes, he last reported pain (2/10, mild) on 30Jul2018 during a primary care visit for an ingrown toenail. b. It should be noted that the applicant was discharged due to Acute Adjustment disorder, and NOT due to Chronic Adjustment Disorder—a boardable BH condition (17 June 2013 Army Directive 2013-12 Implementation of Department of Defense Policy Change Concerning Chronic Adjustment Disorder). The condition was less than 6 months in duration. Based on records available for review, evidence was insufficient to support that the applicant had condition(s) to include a boardable BH condition, which failed medical retention standards of AR 40-501 chapter 3, at the time of discharge. Separation per chapter 5-17 for condition not a disability appeared to be appropriate. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. 2. The Board concurred with the conclusion of the ARBA Medical Advisor and determined that the evidence in this case confirms that the applicant’s discharge by reason of “condition, not a disability” 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. 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. 2. 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). 3. 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. 4. 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. 5. 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. 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. 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. 6. 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. 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 of less than 30 percent. 8. 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. 9. 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. 10. 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) AR20210015047 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1