IN THE CASE OF: BOARD DATE: 9 May 2022 DOCKET NUMBER: AR20210017311 APPLICANT REQUESTS: upgrade his general, under honorable conditions discharge to an honorable physical disability discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he was discharged for medical reasons and his DD Form 214 (Certificate of Release or Discharge from Active Duty) was never changed to reflect this. 3. The applicant enlisted in the United States Army Reserve on 19 May 1980 for a period of 6 years in the delayed entry program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 4 years on 21 August 1980. He was awarded the military occupational specialty (MOS) 11b (infantryman) on 17 June 1981. 4. A DA Form 2627 (Record of Proceedings under Article 15, UCMJ) shows the applicant accepted nonjudicial punishment on 27 August 1981 for failure to obey a lawful order. A second DA Form 2627 shows he accepted nonjudicial punishment on 12 September 1981 for being derelict in the performance of his duties in that he failed to keep control of his assigned weapon. 5. On 1 October 1981, the applicant was notified action was initiated to release him from active duty under the provisions of AR 635-200, paragraph 5-31 (expeditious discharge program) for unsatisfactory performance of his duties; extremely poor attitude; lack of desire to improve performance; and unacceptable disregard for those in authority of over him. He was advised: * he would be recommended for a character of service of general, under honorable conditions * he may expect to encounter substantial prejudice in civilian life * he had the right to consult with an officer of the Judge Advocate General's Corps prior to completing acknowledgement * he had the right to decline this separation; if declined and subsequent conduct indicates that such action is warranted, may be subjected to disciplinary or administrative separation procedures under other provisions of laws or regulations * he had the right to submit a statement on his behalf * he would not be permitted to apply for enlistment in the Army within 2 years from date of separation * there is no automatic upgrading nor review by any government agency of any discharge certificate or character of service which is less than honorable 6. The applicant acknowledged notification of the proposed separation action on 1 October 1981. He elected to voluntarily consent to the discharge. He did not submit statements on his own behalf. 7. The proposed separation action was approved on 6 October 1981. A Checklist for Administrative Discharge Actions, dated 6 October 1981, states in pertinent part: * Item 7: [the applicant]’s conduct and efficiency has been totally unsatisfactory; performance is far below any acceptable standard * Remarks: this individual does not want to serve in the service and due to his lack of interest and soldierly qualities should not be permitted to do so; [the applicant] does not share his portion of the workload, will not take any initiative, and refuses to perform and bear himself as a soldier should; recommend that his discharge be granted as swiftly as possible and that this man be permitted to leave the service, for the good of all 8. The applicant was discharged, under honorable conditions (general), on 9 October 1981 under the provisions of AR635-200, paragraph 5-31h(2) under the Expeditious Discharge Program for failure to maintain acceptable standards for retention. 9. The applicant’s DD Form 149 states he provided a Standard Form 15 (Application for 10-Point Veteran Preference) and benefits award letter, however, no documents were attached to the application. 10. 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 again applying to the ABCMR requesting an upgrade of his 9 October 1981 discharge characterized as under honorable conditions (general), and, in essence, a referral to eh Disability Evaluation System (DES). He states: “I was discharged for medical reasons and my DD-214 was never changed to reflect this. The correction should be made because it should always have said that it was a medical discharge.” b. The Record of Proceedings and prior denials detail the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 21 August 1980 and was discharged on 9 October 1981 under the provisions provided in paragraph 5-31h(2) of AR 635-200, Personnel Separations - Enlisted Personnel (1 May 1980): Expeditious Discharge Program – Discharge those members deemed to have no potential for useful service under conditions of full mobilization. c. Any behavioral health aspects for this case have been reviewed by an ARBA behavioral health provider and a separate opine is in the case file. This opine will review the case for applicable non-behavioral health conditions. d. The applicant does not identify a medical condition as the cause of his discharge. e. No medical documentation was submitted with the application, and because of the period of service under consideration, there are no encounters in AHLTA. f. There is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. j. Review of his records in JLV shows he has been awarded one VA service connected disability rating of 10% for eczema. However, the DES compensates an individual only for service incurred medical 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. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. h. It is the opinion of the ARBA medical advisor that neither a discharge upgrade nor a referral of his case to the DES is warranted. 10. BEHAVIORAL HEALTH REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was not in use at time of his service. His hardcopy military medical record was not available for review. A review of his service record indicates his PULHES was all 1’s indicating he met retention standards IAW AR 40-501. A review of JLV indicates the applicant has received medical care at the VA since September 2013. He has a service connected disability rating of 10% for Eczema. He has not been evaluated or treated for a behavioral health condition at the VA. He reported some depressive symptoms to his PCM on 17 May 2019. He was referred for a behavioral health evaluation but did not follow-up. The clinic called three times with no response and closed the consult. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support a behavioral health diagnosis at the time of his discharge. Medical disability is not warranted. There is no diagnosis to consider with respect to mitigation of the behavior that led to his discharge a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) No (2) Did the condition exist or experience occur during military service? (a) No (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A (4) Does the condition or experience outweigh the discharge? (a) N/A BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published Department of Defense guidance for liberal consideration when reviewing discharge upgrade requests. The Board considered the opinion of the ARBA medical advisor and behavioral health review and concurred with both. Based on the preponderance of evidence available for review, the Board determined that the character of service the applicant received upon separation 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. 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. AR 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. Chapter 5 (Separation for Convenience of the Government) sets forth the conditions under which enlisted personnel may be discharged, released from active duty or active duty for training, or released from military control, for the convenience of the Government with service characterized as honorable or under honorable conditions, as appropriate. a. Paragraph 5 (Expedition Discharge Program (EDP)) provides that members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of existence of one or more of the following conditions may be separated when they have failed to respond to counseling (DA Form 4856, General Counseling Form). b. The criteria in section VIII, chapter 1, will govern whether the member will be released from active duty with transfer to the IRR, or discharged. * Poor attitude. * Lack of motivation. * Lack of self-discipline. * Inability to adapt socially or emotionally. * Failure to demonstrate promotion potential. 3. Title 10, USC, 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 Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 4. AR 635-40 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. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty 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 physical evaluation board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or 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 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 retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of 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 medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. d. 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. e. 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. 5. Title 10, USC, 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, USC, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210017311 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1