IN THE CASE OF: BOARD DATE: 13 October 2022 DOCKET NUMBER: AR20220000182 APPLICANT REQUESTS: in effect, a medical retirement or disability discharge in lieu of misconduct (serious offense) and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * applicant self-authored statement FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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 due to a mental health condition and symptoms, he was unable to meet medical fitness requirements and at the time of his separation proper referral to a medical evaluation board (MEB) or physical evaluation board (PEB) was not made in accordance with regulation. He was later diagnosed with a traumatic brain injury (TBI). a. He is asking the board to consider his mental health at the time of discharge, and his 8 years of active honorable service, including combat as a staff sergeant infantryman. Review his service treatment record around June 2007 for diagnosis (DX) for atypical migraines which occurred shortly after an improvised explosive device/rocket-propelled grenade attack on his vehicle and others in Balad, Iraq. b. Upon going through a medical evaluation for separation, he was assessed for his abilities to perform unit duties and once he was determined to be unfitting he was separated without treatment or consideration of his medical needs. There was a missed opportunity or possible irregularity to accurately assess his disability in terms of fitness for continued Army service for consideration in determining the type of discharge he should have received. His disability would have possibly led to a physical review board or because a diagnosis existed at the time of his separation, this may also have resulted in a medical review board and medical discharge. c. Other than the one time he was absent without leave (AWOL), he had no other instances of misconduct and received many awards, decorations and promotions. He understands the magnitude of his infraction and the stigma in society it creates. He now understands there were many other positive ways he could have addressed his health, but at the time he failed to see the importance of doing it the right way. At the time of his serious misconduct, he was not evading deployment, civilian justice, or using drugs or alcohol, but had underlying issues, and made poor decisions while in a state of poor mental health due to psychological and neurological conditions. 3. The applicant's record is void of the complete facts and circumstances, mental, and medical examinations which led to his discharge from the Army in 2011. a. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty on 20 December 2003 under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 4, completion of required active service. He completed 3 years, 4 months, and 13 days of net active service during this period. His DD Form 214 shows in: (1) Block 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons awarded or authorized: * Presidential Unit Citation (Army) * Army Good Conduct Medal * National Defense Service Medal * Armed Forces Expeditionary Medal * Army Service Ribbon * Army Lapel Button * Combat Infantryman Badge (2) Block 18 (Remarks) – * Soldier Served in Operation Desert Storm * Iraqi Freedom from 1 September 2002 - 26 August 2003 b. A DA Form 2166-8 (Noncommissioned Officer Evaluation Report) covering the period of 1 April 2007 - 31 March 2008, shows in: (1) Part IVb (Competence), rated “Success,” rater comments: * “served as Commander in 62 CLP [Convoy Logistical Patrol], his squad covered more than 10,000 miles over the most dangerous supply routes in the Al Anbar Province of western Iraq” * “his technical and technical knowledge of vehicles and weapon systems proved valuable in the development of the company SOP [Standard Operating Procedures] for its OIF [Operation Iraqi Freedom] mission” * “demonstrated a superior technical and tactical knowledge of his job resulting in zero casualties during deployment to OIF” (2) Part IVc (Physical Fitness and Military Bearing), rated “Success,” rater comments: * “scored 292 on APFT [Army Physical Fitness Test], maintained the Army Physical Fitness badge” * “maintained his squads [squads’] physical fitness in spite of high operations tempo which resulted in all Soldiers scoring 270 or greater” * “sets the standard for Soldiers to emulate his professional attitude” (3) Part IVd (Leadership), rated “Excellence,” rater comments: * “coordinated security with Coalition Forces during multiple enemy ambushes in order to repel insurgent attacks and to secure supply routes” * “incorporated attached personnel of various MOS(s) [military occupational specialties] and tactics in order to create a cohesive and lethal team” * “thoroughly involved in Soldiers personal lives and shows concern for their welfare before his own” (4) Part IVe (Training), rated “Success,” rater comments: * “trained countless personnel from service and support roles in different branches of service on battle drills for Convoy Logistical Patrols and Infantry tactics” * “developed and implemented training programs throughout the deployment to maintain his squads battle effectiveness and Infantry skills” * “reported any significant changes in enemy tactics to other CCs to increase understanding of insurgent activities and to create counter TTPs [Tactics, Techniques, and Procedures]” (5) Part IVf (Responsibility and Accountability), rated “Excellence,” rater comments: * “accounted for and maintained serviceability of more than $10,000,000 in vehicles, weapons, and sensitive items” * “enforced safety standards resulting in zero accidents or injuries during OIF 06-08” * “created situations and opportunities for Soldiers to mature and held them accountable for their actions” (6) Part Va (Rater Overall Potential) - "Among The Best" (7) Part Vc and d (Senior Rater Overall Performance and Potential) - "Successful/1" and "Successful/1" (8) Part Ve (Senior Rater Bullet Comments) - * “promote to SFC [sergeant first class] now” * “send to ANCOC [Advanced Noncommissioned Officer Course] immediately” * “unlimited potential; will make excellent platoon sergeant” * “a natural leader with a lot of experience and knowledge” c. A second DD Form 214 shows the applicant was discharged on 27 September 2011. He completed 5 years, 9 months, and 22 days of net active service during this period including lost time from 13 September 2010- 18 April 2011 (217 days). His DD Form 214 shows in: (1) Block 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons awarded or authorized: * Army Commendation Medal (2nd Award) * Army Achievement Medal (2nd Award) * U.S. Army / U.S. Air Force Presidential Unit Citation (Army) * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Armed Forces Expeditionary Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal with Campaign Star * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (2nd Award) * Combat Infantryman Badge * Expert Infantryman Badge * Silver Basic Recruited Badge * Driver and Mechanic Badge with driver-wheeled vehicle(s) clasp (2) Block 18 (Remarks) - Service in Iraq from 18 September 2006 - 17 September 2007 * Block 23 (Type of Separation) - Discharge * Block 24 (Character of Service) - Under Honorable Conditions (General) * Block 25 (Separation Authority) - AR 635-200, paragraph 14-12c * Block 26 (Separation Code) - "JKQ" * Block 27 (Reentry (RE) Code) - "3" * Block 28 (Narrative Reason for Separation) – Misconduct (Serious Offense) d. A screen shot from the applicant’s eBenefits account shows he was awarded a combined service-connected disability rating of 80 percent (%) for: * TBI - 40%, effective 19 May 2015 * migraine headaches - 30%, effective 19 May 2015 * tinnitus claimed as ears - ringing - 10 %, effective 23 April 2015 * post-traumatic stress disorder (PTSD) (also claimed as depression and insomnia) - 50%, effective 28 September 2011 e. On 7 September 2016, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his general under honorable conditions discharge. On 1 February 2017, after careful review of his application, military records and all other available evidence, the ADRB determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include his combat service, two prior periods of honorable service, post service Veteran Affairs PTSD and TBI service connected diagnosis, circumstances surrounding his AWOL (i.e., severe family matters, abandonment by wife with kids, leading to divorce and financial hardship), and as a result it is inequitable. Accordingly, the Board voted to grant relief and upgraded his characterization of service to honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it. f. On 7 March 2017, the ADRB produced a DD Form 256A (Honorable Discharge Certificate) and updated the applicant’s DD Form 214 to show an honorable character of service for the period ending on 27 September 2011. 4. In regard to the applicant's request for a personal appearance, AR 15-185, states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 5. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests medical retirement or a medical type discharge. He contends that due to his PTSD and TBI, he did not meet retention standards and should have been referred for MEB/PEB processing. He believes that he was not adequately assessed for these conditions and further, he believes that these conditions contributed to his going AWOL and having to undergo a chapter separation. The applicant initially received a ‘General, Under Honorable Conditions’ characterization of service; however, he successfully petitioned the Army Discharge Review Board in 2016 for a discharge upgrade and was granted an ‘Honorable’ characterization at that time. The narrative reason for separation remained unchanged. a. JLV search today showed that the applicant was service connected by the VA for the following: PTSD 70%; Migraine Headaches 50%; TBI 40%; Tinnitus 10% and 17 other conditions. b. The applicant underwent 28Jul2011 physical exam for possible chapter separation and showed the following diagnoses Nicotine Dependence; Insomnia; Superficial Injury- Nonvenomous Insect Bite of Forearm. The examiner indicated the following conditions were divulged on DD Forms 2807-1: Genitourinary symptoms swelling on right testicle; emotional problems/concerns anxiety; skin symptoms; bug bite on right forearm (swelling/redness). He had been prescribed Trazodone by the sleep clinic. He was still reporting sleep problems but had not picked up the prescription yet. The complete evaluation documented on DD Forms 2807-1 and 2808 were not available for review. c. PTSD (1) The applicant was first seen while in service by 1H on 23Apr2010 when he was psychiatrically cleared to attend Recruiter School (Social Work Mental Health Services-Fort Irwin). Two months later, on 29Jun2010, he was seen for complaints of 3 weeks duration of difficulty sleeping in the setting of just having moved to Fort Jackson to attend school (TMC-Fort Jackson). (2) The applicant was AWOL: 20100913 to 20110418 (3) One month later (03May2011 Psychology Clinic- Kimbrough Ambulatory Care Center) he returned to BH services with complaints of chief complaints are ''irritability, sleeplessness, thoughts of past events,'' and ''may have PTSD and combat stress.'' He was self-referred by the recommendation of a medical provider. He reported initial onset of symptoms in 2003 with worsening of symptoms in the past ''5+ months.'' He was open to individual counseling and medication management. For background there was no emotional, physical, or sexual abuse or neglect in childhood however his parents did divorce when he was 3. He did poorly in school because he “despised” it. His financial status was “terrible”. He was divorced twice (2002-2008 and 2008-2011). The first marriage ended due to her infidelity. He stated the second marriage had ''no substance.'' He was cut off from seeing his 2 young daughters (in Georgia) by his first ex- wife. He didn’t use illicit drugs. He ate 4 meals per day, exercised regularly and read for leisure activity. He was pending a charge for being AWOL for 6 months. He stated the AWOL was triggered by his car was repossessed, lack of housing, his wife stole his money, his storage bin was sold, and he was ''drinking heavy”. He endorsed that this was the ''worst part'' of his life. He stated he turned himself in April. The psychiatric exam showed ‘psychomotor restlessness’ and ‘agitation’ behavior. His attitude was ‘distractable’ and ‘guarded’; the observed mood was ‘dysthymic, depressed, and anxious’, although he described his mood as “recovering” and “fine”. His affect was ‘broad’, ‘congruent with mood’. There were no abnormalities noted with his thought process or content, memory or judgement. He reported that his religious faith provided strength and comfort. He was assessed to be experiencing severe stress and PTSD due to financial/social issues and deployment. His primary intrusive thought concerned the accidental shooting of a civilian family in Iraq. The applicant reported feeling guilt and shame. Diagnoses: PTSD; and History of Alcohol Abuse. The following baseline diagnostics were noted: -OQ45 Total Score: 88 (for degree of subjective discomfort, level of impairment in interpersonal functioning; and level of impairment in functioning at work and in other social roles) -PCL-M Score: 49 (for PTSD, he had elevated scores for: repeated disturbing memories, nightmares, physical reactions to trauma memories, trouble remembering trauma, loss of interest, feeling cut off from others, emotional numbness, foreshortened future, problems falling asleep, increased irritability, and hypervigilance) -BDI-II Score: 18 (for depression, he had elevated scores for: loss of pleasure, guilty feelings, punishment feelings, sleep loss, agitation, and loss of interest). 09May2011. The applicant was seen for follow up. Diagnoses: PTSD and Depression. Suicide ideation was endorsed. He was assigned a sleep log. The OQ45 total score 76. (4) 09May2011. The applicant was seen for follow up. Diagnoses: PTSD and Depression. Suicide ideation was endorsed. He was assigned a sleep log. The OQ45 total score 76. (5) 12May2011 OQ45.2 total score 71. He was seen for an initial evaluation by a psychiatrist who confirmed many of the details from the first note. They also added that the first Iraq deployment was during initial invasion and the second involved convoy missions. He saw significant combat/violence. His previous MOS was Infantryman, he was about to start soon as recruiter. The psychiatric exam was notable for his restlessness; and anxious mood (and congruent affect). There was no suicide ideation. Diagnosis: PTSD. The GAF (global assessment functioning score) score “60’s”. He was recommended to start medication (Prazosin), but he refused. He did agree to start specific therapy for combat trauma issues, which he had not ever received yet. (6) 16May2011 OQ45 total score 77. He declined to have the sleep log reviewed. (7) 25May2011 OQ45 total score 68. He was recently referred for a command directed evaluation. He did not trust his Unit. His mood was depressed, anxious and irritable. His affect was worried and irritable. The psychiatric exam did NOT show psychomotor restlessness or agitation. There was no suicide ideation. (8) 09Jun2011 OQ45 total score 65. There were no abnormalities noted in the detailed psychiatric examination. The psychiatric exam did NOT show psychomotor restlessness or agitation. His attitude was not abnormal. His mood was euthymic and calm. Affect was normal and congruent with the mood. There was no suicide ideation. This provider, a licensed clinical psychologist wrote that the applicant was not fit to deploy and most likely was not fit for duty. The applicant was not taking any medication. (9) 22Jun2011. The applicant presented for a Command directed mental health evaluation for possible Chapter 14 separation. He appeared tired and his behavior showed psychomotor restlessness. His mood was unhappy, anxious, and irritable. His affect was flat and showed worry. There was no suicide ideation. The examiner wrote that Command DID think that the applicant had continued potential to serve well in the Army. His eleven odd years of prior service had been excellent. He had been AWOL and was having significant financial issues. This examiner, a licensed clinical psychologist, concurred with Command that the applicant still had potential to serve if he remained in treatment for his PTSD. The OQ45 total score was 77. (10) While in service, he had 5 BH encounters in May 2011 (03May, 09May, 12May, 16May, 25May) and 3 in June 2011 (09Jun, 22Jun, and 11Jun). He did not show for the last scheduled appointment on 09Aug2011. He did not have any trauma specific treatment. He was evaluated by the VA the month following discharge. (11) The applicant was discharged 27Sep2011. (12) 17Oct2011 PTSD DBQ and Mental Disorders DBQ. Diagnoses: PTSD; Depressive Disorder NOS; and Alcohol Abuse. Stressors: His humvee was hit with IED in 2003; and his vehicle was also hit with RPJ's in Fallujah in 2003. He was in a firefight for about 10 minutes. He was awarded a CIB. His global assessment of functioning (GAF) score: 54. The examiner opined that due to his BH condition the level of his occupational and social impairment was with reduced reliability and productivity. During the exam, the examiner noted the applicant’s fidgeting. His mood was deemed to be moderately depressed and irritable by the examiner. He was not taking medication. The examiner assessed the applicant for TBI: however, they concluded that the applicant’s complaint of memory problems secondary to several TBI’s, was not supported “because of lack of objective clinical/mental findings”. The examiner assessed that all cognitive tests were normal. At the time of the exam, the applicant was in college pursuing a Bachelor of Science in Business. He stated that his grades were good. The applicant was service connected by the VA for PTSD at 50% effective 28Sep2011. d. TBI. (1) There were no visits for TBI related complaints while in service. There were no complaints of memory loss or problems with concentration during BH visits. However, his TBI screen was positive in March 2012 and he reported short- term memory issues during the 20Mar2012 Glen Burnie VAMC Primary Care History & Physical Note, to establish care. He also disclosed a history of ADD (attention deficit disorder). He endorsed that he was doing well in school at the time. The TBI diagnosis was presumed in March 2012. Due to difficulty contacting the applicant for follow up (due to homelessness, as a result of the same financial issues that plagued him during service), the condition was not confirmed until 4 years after service, during the 14Dec2015 TBI DBQ. The applicant was diagnosed with TBI secondary to IED explosion near vehicle in 2007. The examiner reviewed the C-file and noted that in the 23Oct2007 Post Deployment Health Assessment, the applicant answered 'yes' to falls, blast, MVA and indicated that he was dazed with post-concussive symptoms (headaches was not endorsed). During the TBI DBQ exam, the applicant reported memory issues for the prior 7-8 years. It was noted that his rank in 2007 was E-6 and he held the same rank in 2011. For the past year he worked fulltime for the VA as a claims assistant. His MoCA score was 22/30. He was presumably rated at 40% by the VA for objective evidence on testing of mild impairment of memory, attention, concentration or executive functions resulting in mild functional impairment. The TBI condition has not required rehab treatment. In the Headaches Condition DBQ, the examiner endorsed that the applicant’s Migraine with Aura condition was a Residual of Mild TBI. (2) Hearing Loss/Tinnitus: While in service, the applicant had one visit for sensorineural hearing loss (14Jun2011). He specifically denied tinnitus during the visit. Almost 2 years after discharge, during the 20Mar2013 Audiology Outpatient Consult, the applicant reported constant right ear tinnitus with onset 2 weeks prior. He had essentially normal hearing, but with asymmetric hearing levels, right poorer than left, abnormal acoustic immittance results. An MRI was ordered to rule out neuroma: The 11Jul2013 brain MRI was unremarkable. The internal auditory canals were also unremarkable. A neuroma was not visualized. (3) Migraine Headache- Ophthalmoplegic: While in service, the applicant had one visit on 08Aug2008 with complaints of symptoms that were suspicious for migraine aura. The symptoms started while he was deployed. He had 2 episodes while there, and then no episode for a year. At the time of the visit, he stated some of the symptoms were occurring weekly. The symptoms included a perception of lights/rainbow that started in the corner of his right eye and then spread to cover much of his vision lasts 20-30 minutes and then goes away. He denied headaches occurring with this. There was a family history of migraine headaches. Diagnosis Ophthalmoplegic Migraine Headache. He was advised to keep a headache journal and maybe he can find triggers other than just stress/lack of sleep. He was to follow up in one week. There was no return visit. During the 14Dec2015 Headaches DBQ exam, the applicant reported one headache per month for which he took an over-the-counter medication. The condition has not required neurology consultation or prescription medication. (3) Insomnia: He was seen for onset of insomnia 3 years after his most recent deployment. There were 2 visits specific for insomnia. 29Jun2010 he was in school (for recruiters) and was reporting insomnia for 3 weeks. He had no medical problems. He denied head symptoms. Then, during the 11Jul2011 Sleep Clinic visit, he was seen for insomnia for 3 years duration. Diagnosis: Insomnia, Chronic. He did not have excessive daytime sleepiness (Epworth Sleepiness Scale score 4 out of 24). His BH history was discussed. It was not documented whether he was queried about previous traumatic brain injury, during the assessment. He was prescribed Trazadone and was advised to keep a sleep log. Other treatment modalities were also discussed. e. The record showed that the applicant has been diagnosed with combat related PTSD and TBI. He was diagnosed with PTSD in May 2011 and was engaged in BH treatment (individual therapy) in May and June of 2011; but had not yet engaged in trauma specific therapy. A TBI was not diagnosed until after discharge. There was no history of suicide attempts or psychiatric hospitalizations. He was not taking medication. Both Command and the BH examiner felt the applicant could continue in the military with continued treatment. Based on evidence available for review, there was insufficient evidence to conclude that the applicant’s PTSD, TBI or Migraine conditions failed medical retention standards of AR 40-501 chapter 3. There was no indication that the TBI or Migraine conditions had significantly impacted his performance; and the PTSD condition did not appear to have reached MRDP yet. Referral for medical discharge processing is not warranted. The 03 September 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017, Clarifying Guidance, were considered. The PTSD and TBI conditions are mitigating for the AWOL misconduct. f. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) Yes (2) Did the condition exist, or did the experience during military service? (a) Yes (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Yes BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined relief was not warranted. The applicant’s contentions, the military record, an advisory opinion, and regulatory guidance were carefully considered. Based upon the applicant’s request to have his narrative reason changed to a medical discharge and the finding of the medical advisor stating referral for medical discharge processing is not warranted, the Board recommended denying the applicant’s requested relief. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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, USC, 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 15–185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. a. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative body. b. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 3. AR 40-501 (Standards of Medical Fitness), in effect at the time, in pertinent part, prescribed the medical fitness standards for enlistment, induction and appointment into military service, and retention and separation, including retirement. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides a listing of all medical conditions and specific causes for referral to a MEB. It states Soldiers with conditions listed in Chapter 3, who do not meet the required medical standards would be evaluated by an MEB. Possession of one or more of the conditions listed in this chapter did not mean automatic retirement or separation from service. Physicians were responsible for referring Soldiers with conditions listed in Chapter 3 to an MEB. 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) in effect at the time, established the Army Physical Disability Evaluation System according to the provisions of Title 10, USC, Chapter 61, Retirement or Separation for Physical Disability, and Department of Defense Directive 1332.18. It set 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. 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 AR 40-501. It states: a. The mere presence of an impairment did not, of itself, justify a finding of unfitness due to physical disability. In each case, it was necessary to compare the nature and degree of the physical disability with the duty requirements of the Soldier, based on his or her office, grade, rank, or rating; and a Soldier was presumed to be in sound physical and mental condition upon entering active duty. b. 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. c. 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.), continued performance of assigned duty (until he or she is referred to the Army Physical Disability Evaluation System for evaluation) creates a presumption that the member is fit for duty. The presumption of fitness may be overcome if the evidence establishes that: (1) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. (2) An acute, grave illness or injury or other significant deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty. 5. AR 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. An under other than honorable conditions discharge 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. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. Paragraph 14-12c, states an absentee returned to military control from a status of AWOL or desertion may be separated for commission of a serious offense. 6. 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's 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 AR 635-40. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with AR 40-501, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any 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 PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. 7. 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%. 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%. 8. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service 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. 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; 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. 10. 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. 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) AR20220000182 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1