IN THE CASE OF: BOARD DATE: 13 October 2022 DOCKET NUMBER: AR20220002533 APPLICANT REQUESTS: in effect, * upgrade of his general, under honorable conditions discharge to honorable * a physical disability discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 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 notified by his noncommissioned officer (NCO) that Madigan Army Medical Center was “looking at medically discharging” him for having fused bones. The NCO began the administrative discharge process the following day. The applicant is also requesting an upgrade of his general, under honorable conditions discharge to honorable. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 6 September 2016. b. The service record includes the applicant’s medical evaluations for the purposes of enlistment which indicated he was generally in good health with the exception of a broken left arm in 2000. The applicant was marked qualified for service. * DD Form 2807-1 (Report of Medical History) dated 13 July 2016 * DD Form 2807-2 (Medical Prescreen of Medical History Report) dated 6 July 2016 * DD Form 2808 (Report of Medical Examination) dated 13 July 2016 c. His Enlisted Record Brief did not indicate the applicant had physical profile limitations. d. The applicant underwent a medical evaluation for the purpose of separation. The applicant identified challenges with dropped arches and foot trouble, recurrent back pain, trouble sleeping, attempted suicide due to poor leadership, but still noted that he was generally in good health. The applicant was marked qualified for service. * DD Form 2697 (Report of Medical Assessment) dated 29 June 2018 * DD Form 2807-1 dated 28 June 2018 * DD Form 2808 dated 28 June 2018 e. Two DA Forms 268 (Report to Suspend Favorable Personnel Actions (FLAG)) were initiated on the applicant with an effective date of 23 July 2018 for involuntary separation. f. On 15 August 2018, the applicant’s commander submitted a request for behavioral health evaluation for discharge under Chapter 14 (Discharge for Acts or Patterns of Misconduct). The commander noted the applicant has shown an inability to follow orders, report for duty, and meet the standards of military bearing. Regardless of multiple attempts for rehabilitation, he had shown a complete disregard for his requirements and responsibilities as a Soldier. g. On 4 September 2018, a Report of Mental Status Evaluation (DA Form 3822) was completed on the applicant. The physician determined: * no duty limitations due to behavioral health issues; currently met medical retention standards and was cleared for administrative action * normal cognition and normal behavior * normal perception and normal impulsivity * not elevated as behavioral heath risk for harm to self or others * no evidence of a thought disorder or psychotic symptoms * mentally responsible, able to distinguish right from wrong, and has the mental capacity to understand and participate in administrative proceedings * suicidal ideations (SI) and homicidal ideations (HI) convincingly denied h. On 22 October 2018, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 14, Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) for patterns of misconduct. The reasons for his proposed action were for the applicant’s failure to maintain a clean uniform, failure to maintain a clean and shaven appearance, failure to be at his appointed place of duty, and failure to complete mandatory training. The applicant acknowledged receipt of the notification of separation action on the same day. i. On 22 October 2018, after declining consulting with legal counsel, he acknowledged: * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general (under honorable conditions) discharge is issued to him * he may be ineligible for many or all benefits as a Veteran under both Federal and State laws * he may apply to the Army Discharge Review Board or the ABCMR for upgrading * he is ineligible to apply for enlistment in the U.S. Army for a period of 2 years following discharge j. On 22 October 2018, the immediate commander initiated separation action against the applicant for patterns of misconduct. He recommended that his period of service be characterized as general, under honorable conditions. The intermediate commander recommended approval. k. On 2 November 2018, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of AR 635-200, paragraph 14-12b for patterns of misconduct. He would be issued a general, under honorable conditions discharge. l. Orders 309-0027, dated 5 November 2018, discharged the applicant from active duty with an effective date of 19 November 2018. m. On 19 November 2018, he was discharged from active duty with a general, under honorable conditions characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 2 months, and 14 days of active service with no lost time. He was assigned separation code JKA and the narrative reason for separation listed as “Pattern of Misconduct.” 4. On 18 July 2022, the applicant was notified by the Army Review Boards Agency that he was required to provide a copy of medical documentation to support his claim of fused bones. The applicant was provided 30 days with a suspense of 18 August 2022. The applicant has not provided a response to date. 5. The applicant's service record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 6. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 7. By regulation (AR 635-200), action will be taken to separate a Soldier for misconduct, such as patterns of misconduct or drug abuse, when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. 8. By regulation (AR 635-8), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 9. By regulation (AR 40-501), medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects are causes for rejection or medical unfitness for these specialized duties. If the profile is permanent the profiling officer must assess if the Soldier meets retention standards. Those Soldiers on active duty who do not meet retention standards must be referred to a medical evaluation board. Once a determination of physical unfitness is made, disabilities are rated using the VA schedule of disability rating. 10. By regulation (AR 635-40), the mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Paragraph 3-4 states Soldiers who sustain or aggravate physically- unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: a. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. b. The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 11. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 12. Title 38, United States Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 13. Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to Veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his/her duties. Unlike the Army, the VA can evaluate a Veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 14. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 15. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an upgrade of his 19 November 2018 honorable conditions (general) discharge and, in essence, a referral to the Disability Evaluation System and a permanent retirement for physical disability. He states: “Notified NCO that Madigan Army Medical Center was looking at medically discharging me for having fused bones. NCO stared administrative discharge the next day.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the Regular Army on 6 September 2016 and was discharged under honorable conditions (general) on 19 November 2018 under the separation authority provided by paragraph 14-12b of AR 635-200, Personnel Separations – Enlisted Personnel (19 December 2016): Pattern of Misconduct. The DD 214 shows no periods of service in an imminent danger pay area. c. The applicant’s pre-entrance Report of Medical History and Report of Medical Examination show he was in good health, without significant medical history or conditions. The provider noted the applicant to have asymptomatic normal foot arches bilaterally. d. Review of the applicant’s encounters in AHLTA show no diagnoses of fused bones or similar abnormalities, nor any referral to the DES. The foot is the most common site of abnormal bone fusion, either soft tissue or osseous. Radiographs of his left ankle in July 2017 in follow-up of an ankle sprain were normal expect for some lateral soft tissue edema/swelling. Weight bearing radiographs of the left foot in January 2018 were normal: “No acute osseous abnormality. No evidence of pes planus {flat feet, i.e., normal arches}. Old chip fractures dorsal to the talonavicular joint.” e. When the applicant completed a Report of Medical Assessment on 29 June 2018, he wrote “Dropped Arch makes it difficult to be on my feet.” On the accompanying Report of Medical Examination, the provider noted the applicant to have tenderness to palpation over his lumbar paraspinal musculature, left patellar tendon, and soft tissue of the medial dorsum of his left foot. In contrast to the pre-entrance examination and the January 2018 weight bearing radiographs of the left foot, this provider noted mild symptomatic pes planus. He found the applicant qualified for service and recommended the applicant follow-up with podiatry. f. On 15 August 2018, his company commander requested a mental status evaluation as part of a chapter 14 of AR 635-200 administrative separation, stating: “PFC {Applicant} has repeatedly shown an inability to follow orders, report for duty, and meet the standards of military bearing. Regardless of multiple attempts at rehabilitation, he has shown a complete disregard for his requirements & responsibilities as a soldier. g. He noted the applicant had received one Article 15 and a second Article 15 was pending. h. A mental health officer completed the requested mental status evaluation on 4 September 2018. He documented a normal examination, that the applicant met medical retention standards, and was cleared for administrative action. He went on to state: “No observed behavioral abnormalities, no evidence of a thought disorder or psychotic symptoms. Service Member is mentally responsible, able to distinguish right from wrong, and has the mental capacity to understand and participate in administrative proceedings.” i. On 22 October 2018, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14-12b, AR 635-200, for reason of a pattern of misconduct. He lists the reasons for his action: “Between on or about 18 April 2018 and on or about 28 June 2018, you failed to maintain a clean uniform IAW AR 670-1. On or about 17 May 2018, you failed to maintain a clean-shaven appearance IAW AR 670-1. On or about 6 July 2018, you failed to be at your appointed place of duty. Finally, on or about 19 July 2018, you failed to complete the SHARP training, as it was your duty to do.” j. The applicant acknowledged the notification the same day. The recommended separation action was approved by the brigade commander on 2 November 2018. k. Review of his records in JLV shows he has no VA service-connected disability ratings or diagnosed mental health conditions. l. There is no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge. m. It is the opinion of the Agency medical advisor neither a discharge upgrade nor a referral of his case to the Disability Evaluation System is warranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the medical records and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board further noted there was no evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations; or that would have failed the medical retention standards. The applicant provided no evidence of fused bones, post-service achievements, or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the narrative reason for separation and character of service the applicant received upon separation were 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 of the regulation states action will be taken to separate a Soldier for misconduct, such as patterns of misconduct or drug abuse, when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. 3. Army Regulation 635-8 (Separation Processing and Documents), states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 4. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (MOS) Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and 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/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 5. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities. VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 6. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 7. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 8. Title 38 U.S. Code, section 1110 (General - Basic Entitlement), states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 9. Title 38 U.S. Code, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 10. 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, on 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. 11. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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 based on 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. 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. 12. 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) AR20220002533 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1