IN THE CASE OF: BOARD DATE: 15 June 2022 DOCKET NUMBER: AR20210015751 APPLICANT’S REQUEST: In effect, correct his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show an honorable character of service and correct the following items to show as Army medically retired: * item 25 (Separation Authority) * item 26 (Separation Code), and * items 28 (Narrative Reason for Separation) to indicate the Army medically retired APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Online DD Form 149 (Application for Correction of Military Record) * Board of Veterans' Appeals record of proceedings * DA Form 3349 (Physical Profile) * Extract from applicant's online military medical record * First page of a Department of Veterans Affairs (VA) Rating Decision * Two VA letters * Settlement Relief for Kennedy v. McCarthy * "Kurta" memorandum (Memorandum, Office of the Under Secretary of Defense, subject: Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Request by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault or Sexual Harassment, dated 25 August 2017 * Electronic mail (email) correspondence * Army Review Boards Agency (ARBA) letter FACTS: 1. Standard of Review. When arriving at its findings and making its determinations, the Board shall review the petition for requested relief independent from any previous petitions submitted to the Army Review Discharge Board or the Army Board for Correction of Military Records (ABCMR).? 2. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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. 3. The applicant states, in effect, that, according to Army regulations, he was supposed to receive a medical retirement from the Army; however, the Army administratively discharged him instead, based on a condition it claimed existed prior to service (EPTS). The applicant declares, when he enlisted, he passed every single medical test; once on active duty, he had to endure a mental incident, which resulted from the military training environment. The Army should have referred him to a medical evaluation board (MEB) and physical evaluation board (PEB). The applicant provides additional arguments in a self-authored statement: a. The applicant begins with two quotes taken from case law, both of which essentially express the applicant's contention an administrative discharge is void if the Army has failed to follow its own regulations. b. The applicant then cites three Army regulations to support his request: (1) Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), dated 8 February 2006 (in effect when the applicant separated). Paragraph 3-2 (Presumptions) states, "A Soldier was in sound physical and mental condition upon entering active service, except for physical disabilities noted and recorded at the time of entry." "The foregoing presumption may be overcome only by a preponderance of the evidence, which differs from personal opinion, speculation, or conjecture." The applicant asserts, in his case, the Army never rebutted the presumption that he was in sound condition upon his entrance on active duty; the Board of Veterans' Appeals subsequently found, "(there) is sufficient basis in the evidence record upon which to conclude that the presumption of soundness at entrance is NOT rebutted." (Emphasis added by applicant). (2) AR 40-400 (Patient Administration), chapter 7 (Military Personnel Physical Disability Processing), dated 13 October 2006 (not in effect at the time at the applicant's separation). (a) Paragraph 7-11 (Expeditious Discharge) required the use of an Entrance Physical Standards Board (EPSBD) to process Soldiers who failed the medical procurement standards in chapter 2 (Physical Standards for Enlistment, Appointment, and Induction), AR 40-501 (Standards of Medical Fitness) standards but met the medical retention standards outlined in chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement). The regulation further stipulated the Soldier had to be on his/her initial enlistment, be within the initial 180 days of active duty or active duty for training, and the medical condition, had it been identified earlier, would have precluded the Soldier's entrance on active duty. The applicant argues the Army used an EPSBD in his case, but because he also failed medical retention standards, the Army violated its own regulation when it did not refer him into the Army's Disability Evaluation System (DES). (b) The applicant goes on to quote paragraph 7-5 (Use of MEBs), which listed situations requiring an MEB referral and stated, when it appeared that a mental illness was the direct cause of unfitness or unsuitability, the Soldier should be referred to an MEB; DES processing took precedence over an administrative separation. The applicant points out his DA Form 4707 (EPSBD Proceedings) recommended his expeditious separation under AR 635-200 (Active Duty Enlisted Administrative Separations). However, the Army had previously issued him a DA Form 3349 (Physical Profile) that showed, per the physical profile serial system, that for the factor "S" (psychiatric), the applicant had a numerical designation of "3" (medical condition that may require significant limitations). In addition, the medical authority had marked "No" for the following profile questions: 5a (Functional Activity – Carry and Fire Individual Weapons?) and 5j (Functional Activity – Live in Austere Environment without Worsening the Medical Condition?). (3) AR 40-501, dated 22 December 2016 (not in effect at the applicant's separation). (a) Chapter 3, paragraph 3-41 (General and Miscellaneous Conditions and Defects) stated that any medical condition that prevented a Soldier from performing any of the functional activities listed under item 5 of the DA Form 3349 required referral to an MEB. As the applicant maintained above, the fact medical authority gave him a "3" on his physical profile, with items 5a and 5j marked as "No," meant the Army should have referred him to an MEB/PEB. (b) Chapter 7 (Physical Profiling), paragraph 7-11 (Preparation, Approval, and Disposition of DA Form 3349) stated, with regard to items 5a through 5j, the listed functional activities represented the minimum requirements necessary for medical qualification to perform military duties worldwide and under field conditions. Concerning Item 7 (Does the Soldier Meet Retention Standards IAW (in accordance with) Chapter 3, AR 40-501?), the regulation required a Soldier's referral to an MMRB (Military Occupational Specialty/Medical Retention Board) when he/she met retention standards but had at least a permanent "3" or "4" profile. Medical authority had to have Soldiers on active duty evaluated by an MEB when they did not meet medical retention standards. The applicant asserts a review of his DA Form 3349 reveals the medical authority never provided an answer in item 7, in violation of Army regulations. 4. The applicant's service record show: a. On 13 April 2004, the applicant enlisted into the U.S. Air Force (USAF). On 26 April 2004, the USAF separated the applicant with an uncharacterized character of service, due to entry-level performance and conduct; his DD Form 214 shows he completed 14 days of net active-duty service. On 13 October 2010, as part of the process for enlisting in the Puerto Rico Army National Guard (PRARNG), the applicant underwent a physical examination. (1) On his DD Form 2807-1 (Report of Medical History), the applicant reported having had no nervous trouble of any sort; on item 26 (Have you ever been discharged from military service for any reason), the applicant answered, "Yes." In the remarks section (item 29), the applicant explained the USAF has given him an honorable discharge. In item 30 (Examiner's Summary and Elaboration of All Pertinent Data), the examining physician noted that, in 2004, the applicant had served in the USAR for 14 days, and the USAF separated the applicant because of a language problem. (2) On the applicant's DD Form 2808 (Report of Medical Examination), the physician affirmed the applicant's qualification for military service and reflected a physical profile indicating no physical limitations. b. On 24 September 2010, civilian authority arrested the applicant for domestic violence. On 23 November 2010, a superior court judge dismissed the charge, citing Rule 64 (Grounds for Motion to Dismiss), subparagraph (n) (6) (Preliminary Hearing not Held within 60 days after Arrest). On 8 September 2011, The Adjutant General (TAG), PRARNG approved a request for enlistment waiver of the applicant's entry-level performance and conduct separation. On 13 September 2011, TAG, PRARNG approved a request, made by the applicant's recruiter, to conduct a suitability review of the applicant. On 30 September 2011, a representative of the U.S. Army Recruiting Command advised the PRARNG that, because the court had dismissed the applicant's domestic charge, the applicant could continue the enlistment process. c. On 3 October 2011, the applicant enlisted into the PRARNG for 7 years and 32 weeks; his rank/grade at enlistment was private (PV2)/E-2 and he was 27 years old. Based on a Military Entrance Processing Station order, the applicant entered initial active duty for training, on 25 October 2011, for initial entry training. d. On 1 November 2011, the applicant arrived at his one-unit-station-training (OSUT) company; on 2 November 2011, medical authority admitted the applicant to the supporting military hospital after the applicant expressed suicidal ideation. On 10 November 2011, using a DA Form 3349 (Physical Profile), medical authority issued the applicant a temporary physical profile for Adjustment Disorder with Mixed Anxious and Depressed Mood; the profile's expiration date was 8 February 2012. In addition, under the physical profile serial system factor "S" (psychiatric), the medical authority showed a numerical designation of "3" (medical condition may require significant limitations). e. On 14 November 2011, the supporting military hospital released a memorandum to the applicant's OSUT commander, stating medical authority had determined that the applicant had a medical condition/physical impairment that would have precluded his current enlistment. As such, medical authority was referring the matter to the applicant's chain of command for possible separation action, under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-11 (Separation of Personnel who did not Meet Procurement Medical Fitness Standards). f. On 15 November 2011, an Entrance Physical Standards Board (EPSBD) convened to evaluate the applicant's medical condition; the EPSBD recorded its results on a DA Form 4707 (EPSBD Proceedings). (1) "IDENTIFYING DATA: The Servicemember is a 27-year-old male with apparent adjustment disorder in the context of separation from his primary support and the stress of basic training." (2) "HISTORY OF PRESENT ILLNESS: The Servicemember is without acute complaint at time of his discharge. He endorses resolution of depressive symptoms and compulsive homicidal ideation." (3) "MENTAL STATUS EXAMINATION: The Servicemember is alert and oriented x4 and in no acute distress. He has appropriate behavior and maintains good eye contact. His motor activity is neutral. His speech is within normal limits. His mood is 'very good.' His affect is euthymic and congruent. Thought process is linear, logical, and goal-oriented. Thought content is not manic/psychotic. Judgment is grossly intact. Insight is fair." (4) "IMPRESSION: The Servicemember is a 27-year-old male with history of anxiety and depressive symptoms, EPTS (existed prior to service), and recent adjustment disorder with anxious and depressed mood who is now demonstrating stability on the inpatient ward without psychopharmacologic intervention." (5) Under "DIAGNOSES," the EPSBD stated, "AXIS I: Adjustment disorder with mixed mood." "AXIS II: Dependent traits." "AXIS III: Mild lower back pain." "AXIS IV: Separation from primary support; occupational stress." "AXIS V: Current Global Assessment of Functioning (GAF): 55." (6) "RECOMMENDATION: The patient is clearly not eligible for training. The Servicemember has mental conditions that existed prior to service. If detected at the time of enlistment date, these would have prevented enlistment in the military. The Servicemember should be immediately removed from all training and physical training. The Servicemember should not have access to weapons or sensitive information. The Servicemember should be expeditiously separated from active duty in accordance with AR 635-200, Chapter (sic, paragraph) 5-11 and AR 40-501 (Standards of Medical Fitness), Chapter (sic) 2-27 (Learning, Psychiatric, and Behavioral Disorders)." g. On 28 November 2011, the applicant indicated he concurred with the results of the EPSBD and requested discharge without delay. On 30 November 2011, the separation authority approved the applicant's separation from active duty. On 5 December 2011, orders released the applicant from active duty and discharged him from the Reserve of the Army. His DD Form 214 shows he completed 1 month and 11 days of net active duty service; in addition, the form reflects the following: * Item 9 (Command to Which Transferred) – PRARNG * Item 25 (Separation Authority) – AR 635-200, paragraph 5-11 * Item 26 (Separation Code) – "JFW" * Item 28 (Narrative Reason for Separation) – "FAILED MEDICAL/PHYSICAL/ PROCUREMENT STANDARDS" h. Effective 5 December 2011, the PRARNG discharged the applicant with an uncharacterized character of service. The applicant's separation order indicated an "MG" (Medical, Physical, or Mental Condition) loss code. 5. The applicant provides the following VA documents: a. First page of a VA Rating decision, dated 15 April 2016, that increased the applicant's disability percentage from 30 to 70 percent for "Chronic Adjustment Disorder with mixed anxiety and depressed mood." b. Two VA letters, dated in April 2016; the first reflected VA's recognition of the applicant's Army service as honorable, and that VA awarded him a combined service- connected disability rating of 100 percent. The second letter listed the amount of the applicant's monthly VA compensation. c. Board of Veterans' Appeals record of proceedings, dated 15 March 2018, which restored the VA's previous service connection for "chronic adjustment disorder with mixed anxiety and depressed mood," previously diagnosed as anxiety disorder with claustrophobia. 6. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. The version of AR 635-200 that was in effect when the applicant separated stated, in paragraph 5-11, AR 635-200, that commanders were to separate Soldiers who failed medical procurement fitness standards, based on the below-listed criteria: (1) Medical authority had to convene EPSBD proceedings within the Soldier's first 6 months of active-duty service, and the board had to establish the following: that: * Medical authority had identified the disqualifying medical condition(s) within 6 months of the Soldier's initial entry on active duty * The condition(s) would have permanently or temporarily disqualified the Soldier from entry into military service, had they been earlier detected; and * The medical condition did not disqualify him/her for retention in military service (2) Effective 1 October 1982, a revision of AR 635-200 required Soldiers in an entry-level status to receive an uncharacterized character of service. For Reserve Component Soldiers, entry-level status started on enlistment and terminated 180 days after the Soldiers' continuous active-duty service. On a case-by-case basis, Headquarters, Department of the Army could direct the issuance of an honorable character of service when clearly warranted by unusual circumstances involving personal conduct and/or duty performance. b. Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation), in effect at the time, stated the following: (1) Enclosure 2 (Definitions), paragraph E2.1.25 (Physical Disability) defined a physical disability as any impairment, resulting from a disease or injury, that reduced or prevented an individual's actual or presumed ability to engage in gainful employment of normal activity. "The term 'physical disability' includes mental disease, but not such inherent defects as behavioral disorders, adjustment disorders, personality disorders, and primary mental deficiencies." (2) Enclosure 3, Part 2 (Eligibility for Referral), paragraph E3.P2.4 (Ineligibility for Referral) stated service members were ineligible for physical disability evaluation if their condition did not constitute a physical disability. (3) Enclosure 5 (Conditions and Circumstances not Constituting a Physical Disability) identified an adjustment disorder as a condition not constituting a physical disability. (4) On 17 June 2013, following a 10 April 2013 change to DODI 1332.38, the Army issued Army Directive 2013-12 (Implementation of Department of Defense Policy Change Concerning Chronic Adjustment Disorder). The guidance showed "chronic adjustment disorder" as a recognized disabling condition; however, for referral into the Army's Disability Evaluation System, medical authority had to find the cause of the Soldier's symptoms resulted directly from exposure to an enduring stressor and had to have lasted for more than 6 months. In addition, the Soldier's persistent and recurring symptoms were sufficient to require extended or recurrent hospitalization and the symptoms interfered with the Soldier's duty performance and required duty limitations. The Army subsequently rescinded Army Directive 2013-12 after the directive's contents were included in the June 2019 revision of AR 40-501. c. DODI 6130.03 (Medical Standards for Appointment, Enlistment, or Induction in the Military Services), in effect at the time, included a listing of disqualifying medical conditions; paragraph 29 (Learning, Psychiatric, and Behavioral) identified a history of a "single adjustment disorder within the previous 3 months, or recurrent episodes of adjustment disorders" as disqualifying. d. AR 40-501 (Standards of Medical Fitness), in effect at the time, provided guidance on medical fitness standards for enlistment and retention. (1) Chapter 2 (Physical Standards for Enlistment, Appointment, and Induction), paragraph 2-27 (Learning, Psychiatric, and Behavioral Disorders) identified a current or history of adjustment disorders as disqualifying. (2) Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), paragraph 3-36 (Adjustment Disorder) stated, "Situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation, if recurrent and causing interference with military duty." (3) Chapter 7 (Physical Profiling), paragraph 7-4 (Temporary vs. Permanent Profiles). Medical authority issued temporary profiles when they considered the condition impermanent. e. The VA and the Army (under the Department of Defense) operate under separate provisions of Federal law (respectively Title 38 (Veterans' Benefits) and Title 10). As such, each makes independent determinations, based upon the requirements set forth within their respective parts of the law and their own internal regulations. Internal regulatory requirements, unique to the respective organization, can result in different descriptions of a former Soldier's service; in addition, any findings made by the VA are not binding on the Army and do not mean determinations made by the Army were wrong. 7. Published guidance to the BCM/NRs clearly indicates that its intent is not to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 8. MEDICAL REVIEW: The applicant is applying to the Army Board for Correction of Military Records (ABCMR) to correct his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show an honorable character of service and correct the following items to show as Army medically retired: * item 25 (Separation Authority) * item 26 (Separation Code), and * items 28 (Narrative Reason for Separation) to indicate the Army medically retired a. The applicant states, in effect, that, according to Army regulations, he was supposed to receive a medical retirement from the Army; however, the Army administratively discharged him instead, based on a condition it claimed existed prior to service (EPTS). The applicant declares, when he enlisted, he passed every single medical test; once on active duty, he had to endure a mental incident, which resulted from the military training environment. The Army should have referred him to a medical evaluation board (MEB) and physical evaluation board (PEB). b. The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes: * Online DD Form 149 (Application for Correction of Military Record) * Board of Veterans' Appeals record of proceedings * DA Form 3349 (Physical Profile) * Extract from applicant's online military medical record * First page of a Department of Veterans Affairs (VA) Rating Decision * Two VA letters * Electronic mail (email) correspondence c. VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed. d. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were reviewed. e. On 13 April 2004, the applicant enlisted into the U.S. Air Force (USAF). On 26 April 2004, the USAF separated the applicant with an uncharacterized character of service, due to entry-level performance and conduct; his DD Form 214 shows he completed 14 days of net active-duty service. f. AHLTA contains in-service BH diagnoses of Adjustment Disorder, Depression, and Major Depression. JLV contains an additional post-service BH diagnosis of Anxiety. He is 70% service connected for Anxiety. g. The applicant entered active-duty Army on 25 OCT 2011. h. The applicant was brought to the ER for suicidal ideation on 3 NOV 2011 (note dated 4 NOV2011). He was placed on unit watch (constant supervision). A T-con note indicates that he has been in Basic Training for 3 days and he has had suicidal ideation for all three days. It notes that he speaks poor English. A safety follow-up note dated 4 NOV 2011, stated that the applicant does not feel like he belongs, doesn’t fit in here. A BH encounter 5 NOV 2011 continues to indicate that he is having suicidal thoughts of hanging himself. He remained on unit watch. A BH encounter on 6 NOV 2011 indicates that he was psychiatrically hospitalized for suicidal ideation. A BH encounter dated 11 NOV 2011 indicated that the applicant was not sure what happened and that he just snapped and is feeling better now that he has been removed from training. i. An Entrance Physical Standards Board Proceedings dated 15 NOV 2011 recommended that: The patient is clearly not eligible for training. The Service member has mental health conditions that existed prior to service. If detected at the time of enlistment date, these would have prevented enlistment in the military. The Service member should be immediately removed from all training and physical training. The Service member should not have access to weapons or sensitive information. The Service member should be expeditiously separated from active duty. j. While the board and BH notes indicate a reduction in symptoms, this appears to be correlated with being suspended from basic training and being separated from the military, as the applicant clearly identified from his 3 days in Basic training, not feeling that he fit in here. k. There is no indication in available records, including AHLTA and JLV that the applicant endured a mental incident which resulted from the military training environment. There is no indication that his symptoms were caused by or exacerbated by military service. l. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant does not have any mitigation for his Chapter 11, Entry Level Performance and Conduct discharge. m. It is important to realize that a diagnosis of a physical or mental condition post- service and the subsequent award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service and affects the individual’s civilian employability. The VA evaluates a member throughout his lifetime, adjusting the percentage of disability based on that agency’s examinations and findings. n. In conclusion, after considering all the available medical documentation, it is the opinion of the Agency psychologist that there is insufficient evidence to warrant a referral of the applicant’s record to IDES (Integrated Disability Evaluation System) for consideration of military medical disability/retirement. o. Kurta Questions (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? (a) No. (2) Did the condition exist or experience occur during military service? (a) N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A. (a) After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant does not have any mitigating BH diagnoses for his Chapter 11, Entry Level Performance and Conduct discharge. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Evidence in the record show the applicant has mental conditions that existed prior to service. If detected at the time of enlistment date, these would have prevented enlistment in the military. The Board found the applicant was accessed and determined that he should be immediately removed from all training and physical training. Upon review of the applicant’s petition, available military records and the medical and behavioral health review, the Board concurred with the advising official finding there is insufficient evidence to warrant a referral of the applicant’s record to IDES (Integrated Disability Evaluation System) for consideration of military medical disability/retirement. The Board determined the applicant failed medical procurement standards and based on medical review does not have any mitigating behavioral health diagnoses for his discharge. Based on this, the Board denied relief. 2. The Board determined DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): Not Applicable 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. Title 10, United State Code, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, prescribed policies and procedures for enlisted administrative separations. It provides, in part: a. An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. b. Effective 1 October 1982, a revision of AR 635-200 mandated that Soldiers separated while in an entry-level status received an uncharacterized character of service. For Reserve Component Soldiers, entry-level status started on enlistment and terminated 180 days after the Soldiers' continuous active duty service. On a case-by- case basis, the Secretary of the Army, or designee, could direct the issuance of an honorable character of service, when clearly warranted by unusual circumstances that involved the Soldier's personal conduct and/or duty performance. c. Paragraph 5-11 stated commanders were to separate Soldiers who failed medical procurement fitness standards. Medical authority had to convene EPSBD proceedings within the Soldier's first 6 months of active duty service, and the board had to establish the following; that: * Medical authority had identified the disqualifying medical condition(s) within 6 months of the Soldier's initial entry on active duty * The condition(s) would have permanently or temporarily disqualified the Soldier from entry into military service, had they been earlier detected; and * The medical condition did not disqualify him/her for retention in military service 4. Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation), in effect at the time, stated the following: (1) Enclosure 2 (Definitions), paragraph E2.1.25 (Physical Disability) defined a physical disability as any impairment, resulting from a disease or injury, that reduced or prevented an individual's actual or presumed ability to engage in gainful employment of normal activity. "The term 'physical disability' includes mental disease, but not such inherent defects as behavioral disorders, adjustment disorders, personality disorders, and primary mental deficiencies." (2) Enclosure 3, Part 2 (Eligibility for Referral), paragraph E3.P2.4 (Ineligibility for Referral) stated service members were ineligible for physical disability evaluation if their condition did not constitute a physical disability. (3) Enclosure 5 (Conditions and Circumstances not Constituting a Physical Disability) identified an adjustment disorders as a condition not constituting a physical disability. (4) On 17 June 2013, following a 10 April 2013 change to DODI 1332.38, the Army issued Army Directive 2013-12 (Implementation of Department of Defense Policy Change Concerning Chronic Adjustment Disorder). The guidance showed "chronic adjustment disorder" as a recognized disabling condition; however, for referral into the Army's Disability Evaluation System, medical authority had to find the cause of the Soldier's symptoms resulted directly from exposure to an enduring stressor and had to have lasted for more than 6 months. In addition, the Soldier's persistent and recurring symptoms were sufficient to require extended or recurrent hospitalization and the symptoms interfered with the Soldier's duty performance and required duty limitations. The Army subsequently rescinded Army Directive 2013-12 after the directive's contents were included in the June 2019 revision of AR 40-501. 5. DODI 6130.03 (Medical Standards for Appointment, Enlistment, or Induction in the Military Services), in effect at the time, included a listing of disqualifying medical conditions; paragraph 29 (Learning, Psychiatric, and Behavioral) identified a history of a "single adjustment disorder within the previous 3 months, or recurrent episodes of adjustment disorders" as disqualifying. 6. AR 40-501 (Standards of Medical Fitness), in effect at the time, provided guidance on medical fitness standards for enlistment and retention. a. Chapter 2 (Physical Standards for Enlistment, Appointment, and Induction), paragraph 2-27 (Learning, Psychiatric, and Behavioral Disorders) identified a current or history of adjustment disorders as disqualifying. b. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), paragraph 3-36 (Adjustment Disorder) stated, "Situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation, if recurrent and causing interference with military duty." c. Chapter 7 (Physical Profiling), paragraph 7-4 (Temporary vs. Permanent Profiles). Medical authority issued temporary profiles when they considered the condition temporary. 7. 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 UOTHC 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. 8. 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 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 misconduct that led to the discharge. 9. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210015751 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1