IN THE CASE OF: BOARD DATE: 9 May 2022 DOCKET NUMBER: AR20210015142 APPLICANT REQUESTS: upgrade of his under honorable conditions (general) character of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement, dated 22 August 2021 * Memorandum, Subject: Psychiatric Evaluation..., dated 23 February 1996 * Memorandum for Record (MFR), issued by Captain (CPT) Senior Defense Counsel, Subject: Administrative Separation..., dated 10 April 1996 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * letter, Army Discharge Review Board (ADRB), dated 27 August 2010 * letter of denial, ADRB, dated 22 October 2010 * Department of Veterans Affairs (DVA) decision letter, dated 13 February 2017 * DVA rating decision, dated 20 April 2019 * DVA summary of benefits, dated 3 October 2019 * letter of support from Master Sergeant (Retired) Jdated 3 May 2016 * letter of support from dated 19 August 2021 * letter of support from dated 23 August 2021 * letter of recognition from dated 24 August 2021 * letter of support from undated * letter of support from undated 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, in effect, he should have been issued an honorable characterization because he was not provided with a proper medical examination. a. After reviewing his ADRB denial and a psychiatric evaluation he received in 1996, prior to his discharge, it appears that the Army mental health evaluation states, his history is compatible with Adult Antisocial Behavior, a non-psychiatric condition, which was a missed diagnosed. The VA found in 2017, years after his ADRB denial in 2010, that he had an unspecified bipolar and related disorder (previously rated by the DVA as depression). This diagnosis was reviewed twice more in 2019; the DVA determined his mental health diagnosis permanent and total on 1 July 2020. If this diagnosis had been noted during his out processing psychiatric evaluation in 1996, he contends he would have been processed differently. b. He also was not aware, until just a few months ago, that a DVA diagnosis could be used as evidence to request an upgrade of his character of service when it is post- traumatic stress disorder (PTSD)/Mental Health related. This information was provided to him in a meeting he attended with the Disabled American Veteran’s (DAV) counselor when members advised he should look into the process. 3. The applicant enlisted in the Regular Army on 13 November 1990. He held military occupational specialty 67U (CH-47 Helicopter Repairman). 4. He served in Korea from on or about 29 May 1991 until on or about 28 May 1992. 5. On 7 June 1994, he extended his enlistment for two months for service remaining requirement to change stations to Europe (Italy). His new expiration of service was 12 January 1997. 6. He received non-judicial punishment on an unspecified date while in Italy for on or about 9 September 1995, without authority, absent himself from his unit, and did remain so absent until 1402 hours, 9 September 1995. Also on or about 2 and 4 August 1995, behave himself with disrespect toward his superior commissioned officer. He was reduced to private/E-2, forfeiture of $478 pay per month for two months, (suspended to be automatically remitted if not vacated before 30 May 1996). 7. On 23 February 1996, he received a psychiatric evaluation, which states: * he talked in a loud, angry voice, using profane language, complaining about his superiors; * his speech was focused; no thought disorder, hallucinations, delusions or cognitive deficits noted; * he knew right from wrong, knew consequences of his and others actions; * he denied suicidal ideations; * he threatened physical violence if he received a chapter 14 separation and not the chapter 16 separation he wants; * he does not appear to be a danger to self or others at this time * his history is compatible, with Adult Antisocial Behavior, a non-psychiatric condition that warrants administrative correction and disciplinary action (highlighted by the applicant) * he is a potential danger to others when he does not get what he wants * he was found mentally responsible, able to distinguish right from wrong, has the capacity to understand and participate in any administrative, judicial, or board proceedings 8. A Report of Medical Assessment, completed on 23 February 1996, for separation processing, shows he complained of shoulder pain and lower back pain. He was referred for follow-up at Ortho. 9. A Report of Medical History and a Report of Medical Examination, completed on 28 March 1996, show he was in good health with shoulder issues. He had shoulder surgery on or about 17 November 1995. He was recommended to follow up with Ortho for his right shoulder pain. However, his Physical profile rating contained all "1" marks and he was, ultimately, found qualified for separation. 10. On 3 April 1996, the applicant was notified of his commander’s intent to separate him under the provisions (UP) of Army Regulation (AR) 635-200, chapter 14-12b, due to a pattern of misconduct. The applicant acknowledged receipt of the proposed separation. 11. On 4 April 1996, having been advised by consulting counsel of the basis for the contemplated action to separate him for a pattern of misconduct UP of AR 635-200, chapter 14-12b, its effects, of the rights available to him; and the effect of any action taken by him in waiving his rights, he acknowledged that he understood: * he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * he will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge * having been advised by the Senior Defense Counsel, the applicant stated his shoulder injury very likely renders him so as to not meet medical retention standards * it is the applicant’s position that his medical disability is the substantial cause of his misconduct, and that the command and medical examining officials are not following regulations * he should have a medical board before separation under Chapter 14, AR 635- 200 is considered 12. On 6 April 1996, his chain of command recommended his separation UP of AR 635- 200, chapter 14-12b for patterns of misconduct. 13. On 8 April 1996, the separation authority approved separation UP of AR 635-200, chapter 14-12b. He directed his character of service be general under honorable conditions. 14. On 10 April 1996, in a MFR, the Senior Defense Counsel argued: * a determination was not made regarding the applicant’s medical examination and whether he met Army medical retention standards * as a helicopter mechanic, he obviously does not meet medical retention standards; He has a severely limited range of motion of his right arm and shoulder due to a service-related injury over a year ago * the medical officer hastily concluded that the applicant was "cleared" for "separation," but at the same time referred him to an orthopedic specialist to evaluate his shoulder (highlighted by the applicant) * since he did not meet medical retention standards, AR 635-200, Paragraph 1-35, requires that he undergo a medical evaluation board (MEB) prior to being processed for separation * he has not been afforded the opportunity to undergo an MEB, nor has he been evaluated for one by a competent orthopedic specialist (as recommended by a medical officer) 15. The applicant did not provide, nor do his records contain, a permanent level 3 (P-3) physical profile recommending his referral to an MEB. 16. On 20 April 1996, he was discharged under honorable conditions for misconduct UP of AR 635-200, paragraph 14-12b. His DD Form 214 shows he completed 5 years, 5 months, and 8 days of net active service this period. 17. The Army Discharge Review Board, after careful consideration of his military records and all other available evidence, determined that he was properly and equitably discharged. Accordingly, his request for a change in the type and nature of his discharge was denied. 18. The applicant provided the following evidence and correspondence from the dva: a. A letter from the DVA, dated 13 February 2017, informed the applicant his rating of 50 percent (%) for his condition of "unspecified bipolar and related disorder (previously claimed as depression) was continued. b. A DVA rating decision, dated 20 April 2019, shows his rating of 50 percent (%) for his condition of "unspecified bipolar and related disorder (previously claimed as depression) was continued. c. A summary of benefits letter from the DVA, dated 3 October 2019, states his combined service-connected disability condition was 100% and he was considered to be totally and permanently disabled due to his service connected disabilities, effective 8 January 2019. This letter did not list the applicant's rated disabilities. 19. The applicant provides the following letters of support or recommendation: a. Support letter by (Supervisor) discussed the applicant’s work ethic and dependability. He was hired as a General Schedule(GS) 07 and is currently a GS-12. (The entire letter is in documents for review). b. Support letter by (Member of DAV) discussed the applicant’s passion for helping active service members and veterans. He is one of the most dedicated, passionate, caring and professional Veterans. (The entire letter is in documents for review). c. Support letter by (Co-worker) stated he has exemplified high character and demonstrated selflessness by always seeking opportunities to help his fellow peers with work and life issues. He has always helped veterans with meaningful employment and disability benefits. (The entire letter is in documents for review). d. Support letter by (Co-worker) which described the applicant’s pain in which he was in during the periods they worked together. (The entire letter is in documents for review). e. Support letter by (Co-Worker) which described the applicant as a quick learner and an amazing mechanic and team player. He discussed the applicant’s shoulder and back injuries in which he obtained while in the Army. (The entire letter is in documents for review). f. Support letter by (20-year friend) stated the applicant had back surgery in 2010, and he is still in some form of constant pain. His quality of life has drastically deteriorated over the past 20 years. (The entire letter is in documents for review). 20. In reaching its determination, the Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 21. 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 an upgrade of his 20 May 1996 discharge characterized as under honorable conditions (general). He states: “After reviewing my first denial it appears that the Army mental health evaluation stating, ‘SPC {Applicant}'s history is compatible with Adult Antisocial Behavior, a non-psychiatric condition.’ I was missed diagnosis. The VA found in 2017, years after my first denial in 2010, that I had an ‘unspecified bipolar and related disorder (previously rated as depression.)’ This diagnosis was reviewed twice more in 2019 it was considered Permanent and Total. If this correct diagnosis been noted in my out process Psychiatric Evaluation done by MAJ I would have been processed differently.” b. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. The DD 214 for the period of service under consideration shows he entered the regular Army on 13 November 1990 and received an under honorable conditions (general) discharge 20 May 1996 under the separation authority provided by paragraph 14-12b of AR 635-200, Active Duty Enlisted Administrative Separations (17 September 1990): Pattern of Misconduct. No overseas deployments are listed on the DD 214. c. The request for a discharge upgrade was denied by the ADRB on 18 October 2010 (AR20100006940). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. Because this denial was before the institution of liberal consideration polices, this review will concentrate on evidence of a potentially mitigating mental health condition as well as new evidence submitted with this application. d. The applicant received an Article 15 for a less than 24-hour period of absence without leave and 2 incidents of disrespect toward a commissioned officer. He was reduced in rank from private first class (E03) to private second class (E02). e. The applicant, now a specialist (E04), underwent a command referred mental status evaluation on 23 February 1996: (1) “Command reports soldier's disrespect for a noncommissioned officer in Apr 95, failure to be at appointed place of duty in Apr 95, and insubordinate conduct toward a senior noncommissioned officer in Oct 95; also reports soldiers display of minimum output in work performance, soldier's aggressiveness and lack of fear of authority and of consequences except when money is concerned.” (2) “Mental status evaluation revealed the following: He talked in a loud, angry voice, using profane language, complaining about his superiors; speech focused; no thought disorder, hallucinations, delusions or cognitive deficits noted; knew right from wrong, knew consequences of his and others' actions; denied suicidal ideations; threatened that if he gets chapter 14 separation and not chapter 16 which he wants, "I'm gonna leave someone with a broken arm so that they will know how it feels to have a broken shoulder like me". Further said, "If they keep harassing me more, they're gonna see violence. I really love to see people hurt". The soldier does not appear to be a danger to self or others at this time. (3) SPC {Applicant}'s history is compatible with Adult Antisocial Behavior, a non- psychiatric condition that warrants administrative correction and disciplinary action. He is a potential danger to others when he does not get what he wants. (4) Currently, SPC “{Applicant} is mentally responsible, able to distinguish right from wrong, has the capacity to understand and participate in any administrative, judicial, or board proceedings. This service member is psychiatrically cleared for any administrative action deemed appropriate by Command.” f. His 28 March 1996 pre-separation examination shows the then private first class (E03) had undergone right shoulder surgery in November 1995 and that he was taking Tylenol with codeine for pain. The provider found the applicant qualified for discharge with the recommendation he follow-up with orthopedics following his discharge. g. No additional medical documents were submitted with the application and there are no encounters in AHLTA. h. On 6 April 1996, his company commander recommended his separation under paragraph 14-12b of AR 635-200: PV2 {Applicant} has no potential for continued military service. His pattern of misconduct is detrimental to this unit's discipline, morale and espirit de corps. i. The reason for the applicant’s second reduction in rank from private first class (E03) to private second class (E02) was not identified. j. His defense counsel recommended the applicant undergo an orthopedic evaluation prior to his administrative separation: “Private {Applicant} reports, and his medical records and chapter examination indicate, that he has a serious service-related shoulder injury that very likely renders him so as to not meet medical retention standards. In that case disposition of Private {Applicant}'s separation must be completed in accord with Paragraph 1-35, AR 635-200. He should be further evaluated by a qualified orthopedic physician, then if appropriate, undergo a medical board UP AR 40-3.” k. However, the applicant’s pending 14-12b discharge rendered him ineligible for the Physical Disability Evaluation Process without the written approval of his General Court Martial Convening Authority. l. Paragraph E3.P2.4.3 of enclosure 3 to part 2 of Department of Defense Instruction 1332.38 Subject: Physical Disability Evaluation (14 November 1996) states: “Except as provided under Service regulations, the member is pending separation under provisions that authorize a characterization of service of Under Other Than Honorable (UOTH). This restriction is based on the provisions under which the member is being separated and not on the actual characterization the member receives. For example, because separation for misconduct authorizes a UOTH, a member who is being separated for misconduct with a general characterization is ineligible for referral into the DES except as provided under the regulations of the respective Service.” m. Paragraph 14-3a of AR 635-200 states: “A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the soldier s overall record.” n. Paragraph 4-1a of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990) states: Uniform Code of Military Justice (UCMJ) action. The case of a soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless (1) The investigation ends without charges. (2) The officer exercising proper court-martial jurisdiction dismisses the charges: (3) The officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such sentence. o. Review of his records in JLV show he was diagnosed with depression in and later with “Bipolar disorder, in full remission, most recent episode hypomanic.” Neither of these conditions are associated with the patient making threats of violence against others. The diagnosis of an antisocial personality disorder is consistent with his clinical evaluation and presentation, as well as the known actions which led to his administrative discharge. As mentioned earlier, the action/incident which led to his second rank reduction is not known. Without knowledge of this action, it cannot be mitigated. p. There is insufficient evidence the applicant had a service incurred mental health or other medical condition which would have then contributed to or would now mitigate under liberal consideration policies the UCMJ violations and other actions which led to his discharge; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. q. It is the opinion of the ARBA medical advisor that a discharge upgrade is not warranted. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence the applicant had a service incurred mental health or other medical condition which would have then contributed to or would now mitigate factors to overcome the misconduct. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. The Board agreed that the VA provides post-service support and benefits for service connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service connected disabilities. Variance in ratings do not indicate an error on the part of either entity. If the applicant has yet to file a claim with the Veterans Administration for his medical condition(s), he may consider doing so. 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 (AR) 635-200 (Personnel Separation – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-34, provided that medical examinations are required for Soldiers being separated under chapter 14. When a Soldier is to be processed per Chapter 14, the unit commander must insure that an appropriate mental status evaluation is obtained in addition to the medical examination. Detailed information about the reasons for considering the Soldier for separation will be furnished the medical examiner to allow a thorough understanding of the contemplated action. b. Paragraph 1-35b provided that when the examining medical officer decides that a Soldier being considered for separation for misconduct under the provisions of Chapter 14 does not meet the retention medical standards, he or she will refer the Soldier to a medical board. If there is no medical board at the examining facility, the Soldier will be referred to the nearest medical treatment facility that does have a medical board. The medical treatment facility commander will furnish a copy of the approved board proceedings to the commander exercising general court-martial jurisdiction over the Soldier concerned. A copy will also be furnished to the unit commander. The commander exercising general court-martial jurisdiction will direct the Soldier to be processed through disability, channels per AR 635-40 when it is determined that the disability is the cause or substantial contributing cause of the misconduct and/or circumstances warrant disability processing instead of administrative processing. c. Paragraph 3-7a provided 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. Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. d. Paragraph 3-7b provided a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. e. Chapter 14 established policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission-of a serious offense, conviction by civil authorities, desertion, and absence without-leave. Action will be taken to separate a Soldier for misconduct when it is clearly established that - (1) despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed; (2) rehabilitation is impracticable or Soldier, is not amenable to rehabilitation (as indicated by the medical or personal history record); and (3) An unfit medical condition (AR 40-501) is not the direct or substantial contributing cause or his or her conduct. See paragraph 1-34. 3. 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, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40. a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board * receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, Human Resources Command c. The PDES assessment process involves two distinct stages: the MEB and the 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 are either 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 retirement payments and have access to all other benefits afforded to military retirees. d. 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. 4. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 5. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating. It provides that an MEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. 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 service. a. Paragraph 2-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. d. Paragraph 4-10 provides that MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on criteria in Army Regulation 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. e. Paragraph 4-12 provides that each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the disability evaluation system. An informal board must ensure that each case considered is complete and correct. All evidence in the case file must be closely examined and additional evidence obtained, if required. 6. 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. 7. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active military service. The VA, however, is not empowered by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 8. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 9. 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; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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 that misconduct which led to the discharge. 10. 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. a. 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 on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. 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. 11. 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) AR20210015142 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1