IN THE CASE OF: BOARD DATE: 21 September 2022 DOCKET NUMBER: AR20220004409 APPLICANT REQUESTS: * upgrade of his general under honorable conditions discharge to honorable * the following corrections to his DD Form 214 (Certificate of Release or Discharge from Active Duty): o change block 26 (Separation Code) to “SFJ” in lieu of “JKA,” o change block 28 (Narrative Reason for Separation) to Permanent Physical Disability in lieu of pattern of misconduct APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * Veterans Affairs (VA) Rating Decision, dated 7 January 2021 FACTS: 1. The applicant did not file within the 3-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 his chain of command initiated a medical board for him but withdrew his paperwork. However, the VA has the following findings: "9421: Somatic symptom disorder (under high stage 1 stress), insomnia, alcohol use disorder to help my pain, and alcohol induced anxiety.: Service Connected (SC) 50%, with SC 20% 5237: Chronic Lumbosacral strains and SC 20% chronic cervical strains; SC 10% each 5299-5261: bilateral patellofemoral knee pain syndrome; bilateral radiculopathy; including TBI [Traumatic Brain Injury] and chronic migraine tension headaches; bilateral shin splints; see attached VA rating letter. PTSD [Post-Traumatic Stress Disorder] rating is still pending.” He is currently VA service connected 90% combined disabled. 3. On 14 July 2015, the applicant enlisted in the Regular Army for a period of 3 years and 32 weeks. 4. On 19 January 2018, the applicant reenlisted for a period of 5 years. 5. Four DA Forms 4856 (Developmental Counseling Form) show the applicant was counseled on/for: * 2 October 2018 - missing an appointment on 21 September 2018 * 2 October 2018 - receiving a speeding ticket on 28 September 2018 * 23 October 2018 - failing to report to his appointed place of duty on 23 October 2018 * 24 October 2018 - notification of adverse action flag effective 24 October 2018 6. A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 24 October 2018, shows the applicant was flagged for adverse action effective 24 October 2018. There is no record of the flag removal effective date. 7. A DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) shows the applicant accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ on 5 November 2018, for failing to go at the prescribed time to his appointed place of duty, the 0900 accountability formation located at the company motorpool. 8. Three separate DA Forms 4856 show the applicant was counseled on 2 January 2020 for: * failing to report to the 0630 physical training formation on 4 December 2019 * failing to report to the 0740 work call formation on 10 December 2019 * failing to report to his appointed place of duty (motorpool at 0630) on 12 December 2019 9. Two separate DA Forms 268, dated 3 January 2020, shows the applicant was flagged for adverse action and involuntary separation - field initiated effective 3 January 2020. 10. Two DA Forms 4856 shows the applicant was counseled on/for: * 6 January 2020 - notification he was flagged for adverse action and involuntary separation - field initiated for three failures to report within a 30-day period * 9 January 2020 - failure to have proof of insurance policy to operate a privately owned vehicle and failure to obey a lawful order 11. A DD Form 2807-1 (Report of Medical History), dated 9 January 2020 shows the applicant filled this form out, however he was not evaluated for separation on this date. He endorsed having a medical history that included the following: * block10d - asthma or any breathing problems related to exercise, weather, pollens, etc. * block 10h - prescribed or used an inhaler * block 10i - chronic cough or cough at night * block 11f - worn contact lenses or glasses * block 12h - swollen or painful joint(s) * block 12i - knee trouble * block 12n - broken bone(s) (cracked or fractured) * block 15c - head injury, memory loss or amnesia * block 15g - a period of unconsciousness or concussion * block 17d - frequent trouble sleeping * block 17e - received counseling of any type * block 17g - evaluated for or treated for a mental condition * block 17h - attempted suicide 12. A Standard Form 600 (Medical Record), dated 9 January 2020, states the applicant was a Stryker systems maintainer. 13. A DD Form 2808 (Report of Medical Examination), undated shows the applicant received an acceptable dental examination for the purpose of an Army separation. 14. A DA Form 3822-R (Report of Mental Status Evaluation), dated 23 January 2020, shows the following: a. The applicant was cleared for any administrative or judicial action deemed appropriate by the command. b. There were no mitigating psychological factors that would diminish the applicant’s ability to make deliberate choices, know right from wrong or adhere to the former. c. The applicant should be subject to the normal channels of counseling and discipline including UCMJ if warranted for misconduct. He met medical retention requirements of chapter 3, Army Regulation (AR) 40-501 (Standards of Medical Fitness). d. The medical record does not contain evidence of a documented change in diagnosis from boardable to non-boardable behavioral health condition within the last 90 days. e. The applicant was cleared for separation per AR 635-200 (Active Duty Enlisted Administrative Separations). The discharge is characterized as “Other than Honorable” conditions.” 15. A DD Form 2697 (Report of Medical Assessment), page one dated 9 January 2020 shows the applicant stated his overall health was the same when compared to his last medical examination. He states he suffered a lower back injury while on active duty, however he never scheduled an appointment due to a high maintenance workload. He claimed he had condition(s) that currently limited his ability to work in his primary military specialty or required geographic or assignment limitations (see SF 600). He intended to seek VA disability for injuries to his right hand and both knees, being exposed to hazardous and cancerous fluids, chemicals, and fumes/vapors at work. Page two of this form dated 27 January 2020, the health care provider states for: * block 13 - reviewed the applicant’s lower back claim, he was currently on profile and pending initial result of a radiograph * block 15 - status post 2017, his right index finger proximal interphalangeal joint volar plate fracture, no eval by hand surgeon although he previously received a recommendation from Hospital Ortho * block 18 - reviewed, he had a prior evaluation and treatment for finger and bilateral knee complaints, no prior eval for heavy metals/toxin exposure, however he had bacterial pneumonia in November 2019 which resolved with empiric treatment * blocks 21 and 22 - the form shows the applicant was not referred for further evaluation and was cleared for Army separation 16. A DD Form 2807-1, dated 27 January 2020 shows the applicant was evaluated for separation and he endorsed having a medical history that included the same selected areas in paragraph 12 above. The examiner reviewed his medical history and stated: * block 10d - November 2019, resolved with empiric treatment * block 12h - prior imaging with right bipartite patella and mild patellar chondromalacia * block 12n -right index finger 2017, no other radiographic evidence of fractures in Armed Forces Health Longitudinal Technology (AHLTA) review * block 15c - unstrained high-speed motor vehicle accident (MVA) April 2017, computed tomography for head at BACH emergency was negative for acute intracranial hemorrhage * block 15g - April 2017 MVA * block 17g - currently enrolled in substance use disorder clinical care 17. A Standard Form 600, dated 27 January 2020, states the applicant could not close his fist completely because his finger would not allow it. This made carrying something a little difficult because his hand felt like it was getting weaker and weaker the longer he held onto something heavy. 18. A DD Form 2808, dated 27 January 2020 shows the applicant was examined on the date of the form for the purpose of Army separation. The doctor annotated his defects as right index finger-decreased range of motion, sequela of prior medial phalanx, bilateral knee pain, and low back pain. She recommended the applicant follow up with a hand surgeon as previously recommended by Ortho. No duty limiting conditions, medically cleared to continue with separation proceedings in accordance with AR 40-501. The applicant was found qualified for service with a physical profile rating of “1” in all categories. 19. A second DA Form 2627 shows the applicant accepted NJP under Article 15 of the UCMJ on 28 January 2020, on/for: * on or about 9 January 2020, failed to obey a lawful order issued to him by First Sergeant , to reside in the barracks during the work week * on or about 9 January 2020, failed to obey a lawful order issued to him by Sergeant ., to not drive a privately owned vehicle until he obtained proper insurance 20. On 12 February 2020, his immediate commander notified him that he was initiating action to separate him from the service under the provisions of AR 635-200, paragraph 14-12b, pattern of misconduct. The commander’s reason for his proposed action, was three failures to report, disobeying a lawful order, and allegedly operating a vehicle that was not registered in his name. His commander recommended the applicant receive a general, under honorable conditions discharge. The applicant was advised of his right to consult without counsel and submit statements in his behalf. The applicant acknowledged receipt of the notification for separation. 21. On 13 February 2020, the applicant was advised by consulting counsel of the basis of the contemplated action to separate him under the provisions of AR 635-200, paragraph 14-12b, and its effects, and the rights available to him. He waived consulting counsel and did not submit statements in his own behalf. He acknowledged understanding he may expect to encounter substantial prejudice in civilian life if he were issued a general discharge under honorable conditions. 22. On 18 February 2020, his immediate and battalion commanders recommended he receive a general under honorable conditions discharge prior to his expiration term of service under the provisions of Chapter 14, paragraph 14-12b (Pattern of Misconduct), AR 635-200. In addition, his immediate company commander stated the applicant required close supervision to maintain simple accountability. He continues to disobey orders even while on punishment and on notification of separation. 23. On 25 February 2020, the separation authority directed the applicant’s general discharge under honorable conditions under the provisions of AR 635-200, chapter 14, paragraph 14-12b (Pattern of Misconduct) prior to his expiration term of service. He was not eligible to be transferred to the Individual Ready Reserve per AR 635-200, paragraph 1-35b (8)(i). 24. The applicant provided his DD Form 214, it shows he was given a general discharge under honorable conditions on 13 March 2020, under the provisions of AR 635-200, paragraph 14-12b, for a pattern of misconduct and was credited with 4 years and 8 months of net active service. 25. The applicant provided his VA rating decision, dated 7 January 2021, it shows he was granted a combined rating of 90 percent (%) for service-connected disabilities effective 14 March 2020 for: * 50% - somatic symptom disorder, insomnia, and alcohol use disorder with alcohol induced anxiety * 20% - cervical strain * 20% - lumbosacral strain * 10% - right hand, ankylosis of 2nd finger proximal interphalangeal and distal interphalangeal joints * 10% - right wrist dequervain’s syndrome * 10% - right knee instability * 10% - left knee patellofemoral pain syndrome * 10% - right knee strain with patellofemoral pain syndrome * 10% - tinnitus * 10% - left leg radiculopathy associated with lumbosacral strain * 0% - left shin splints * 0% - right shin splints * 0% - forehead laceration * 0% - scar, right hand * 0% - TBI * 0% - tension headaches 26. 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 13 March 2020 honorable conditions (general) discharge and, in essence, a referral to the Disability Evaluation System and a permanent retirement for physical disability. He states: “Chain of Command at first was medical boarding me then pulled/withdrew my paperwork even though the examiner stated as well as VA: "9421: Somatic symptom disorder insomnia, alcohol use disorder to help my pain, (under high stage 1 stress), and alcohol induced anxiety.: Service Connected (SC) 50%, with SC 20% 5237: Chronic Lumbosacral strains and SC 20% chronic cervical strains; SC 10% each 5299-5261: bilateral patellofemoral knee pain syndrome; bilateral radiculopathy; including TBI and chronic migraine tension headaches; bilateral shin splints; see attached VA rating letter. PTSD rating is still pending. I'm currently VA SC 90% combined disabled.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered active the Regular Army on 14 July 2015 and was discharged under honorable conditions (general) on 13 March 2020 under the separation authority provided by paragraph 14-12b of AR 635-200, Personnel Separations – Enlisted Personnel (1 November 2000): Pattern of Misconduct. The DD 214 shows no periods of service in an imminent danger pay area. c. Supporting documentation shows the applicant received numerous negative event oriented counselings and at least one Article 15. d. On 12 February 2020, 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: “On or about 4 December 2019, you failed to report to a 0630 PT formation at HHC, 1-5 BN COF. On or about 10 December 2019, you ·failed to report to a 0740 work call at the 1-5 INF motor pool. On or about 12 December 2019, you failed to report to a 0630 accountability formation. On or about 9 January 2020, you willfully disobeyed an order from 1SG . which was to stay in the barracks overnight during the work week. You also violated Statute 28.22.101 by allegedly operating a vehicle that was not registered under your name.” e. The applicant acknowledged the notification the same day. The recommended separation action was approved by the brigade commander on 25 February 2020. f. Review of his records in AHLTA show he sustained a nondisplaced fracture of medial phalanx of right index finger in a motor vehicle accident in June 2017; an uncomplicated fascial laceration from a piece of military equipment in April 2017; and was seen four times for knee pain and twice for left ankle/foot pain during his service. g. The applicant has 193 behavioral health related visits. The majority of these were for treatment of uncomplicated alcohol dependence. h. Early in his career, he was seen for “Problems of adjust to life-cycle transition” and adjustment disorder with depressed mood. He once self-referred for issues with sleep, attention, and memory believing these were related to a traumatic brain injury. However, following evaluation the applicant was diagnosed with “Attention-deficit hyperactivity disorder, predominantly inattentive type.” He was treated for this and did well. From a 10 July 2018 follow-up encounter: "’The medicine really helps me focus, but it only lasts for 3-4 hours so I usually take it after lunch.’ The patient has responded well to the change to Concerta last month.” i. The applicant underwent a pre-separation mental status evaluation on 23 January 2020. “SM {Service Member} declines any follow up treatment at . He is actually pleased to be discharged, is hopeful, and plans to remain in the area and get his CDL {commercial drivers license} and/or obtain an apprenticeship in fire safety engineering. He and girlfriend plan to eventually move to his hometown. He states she and his family provide good support and members contact him consistently ... Patient was pleasant, cooperative, and relaxed during the evaluation.” j. The provider stated the applicant showed no evidence of an impairing behavioral health (BH) condition and had no duty limitations for behavioral health reason, stating: SM is cleared for any administrative or judicial actions deemed appropriate by command. There are no mitigating psychological factors that diminish SM's ability to make deliberate choices, know right from wrong, or adhere to the former. SM should be subject to normal channels of counseling and discipline, including UCMJ if warranted for misconduct. SM meets medical retention requirements of Chapter 3, AR-40-501. The medical record does not contain evidence of a documented change in diagnosis from boardable to non-boardable BH condition within the last 90 days. SM is cleared for separation IAW AR 635-200. The discharge is characterized as “Other than Honorable" conditions.” k. The applicant underwent a pre-separation physical examination on 2 February 2020. The applicant’s complaints at that time were back pain, knee pain, and right finger pain. The only clinical findings documented by the provider were some swelling and tenderness with decrease movement of the right index finger proximal interphalangeal joint; and some mild lumbar paraspinal muscle tenderness to palpation with a normal full range of motion. l. The provider cited multiple imaging studies: Plain radiographs and an MRI of his left knee were normal; plain radiographs of the right knee revealed a bi-partite patella (a normal variant) and an MRI of the right knee revealed some mild chondromalacia related to his bipartite patella but was other wise normal; and a follow-up MRI of his right middle phalanx fracture revealed “Chronic sequela of healed right index finger middle phalanx volar plate injury.” m. The applicants low back, right finger, and bilateral knee pain were documented, determined to meet the medical retention standards of AR 40-501, Standards of Medical Fitness, and the applicant was found qualified for separation. n. There is no probative 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. o. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings, including PTSD. 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. p. 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. q. 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 experience occur during military service? (a) YES (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Partially: His PTSD, being associated with avoidant behaviors and issues/difficulties with authority figures, mitigate his failures to report and willful disobeying of orders respectively. However, it cannot mitigate his violation of state law. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was 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. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the medical opinion finding neither a discharge upgrade nor a referral of his case to the Disability Evaluation System is warranted. He was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. However, during deliberation the Board noted the applicant’s honorable service for his 1st enlistment was not reflected on his DD Form 214, thus the Board granted partial relief to correct the applicant’s record to show his continuous honorable service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214 for the period ending 13 March 2020: “Continuous Honorable active service from 14 July 2015 until 17 January 2018.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to referral to DES or upgrade of his general under honorable conditions discharge to honorable nor correction to block 26 (Separation Code) to “SFJ” in lieu of “JKA”,, block 28 (Narrative Reason for Separation) to Permanent Physical Disability in lieu of pattern of misconduct. 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 635-5-1 (Separation Program Designator (SPD) Codes), currently in effect, prescribes the specific authorities (statutory or other directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD Code/RE Code Cross Reference Table shows a Soldier assigned the below SPD codes are assigned the below RE code. SPD Code Narrative Reason Regulatory Authority RE code JKA Pattern of Misconduct AR 635-200, paragraph 14-12b 3 SFJ Disability, Permanent AR 635-40, para 4–24b(1) (Permanent retirement for physical disability) 4 3. AR 635-40, (Physical Evaluation for Retention, Retirement, or Separation), currently in effect, establishes the Army Disability Evaluation System (DES) and according to the provisions of Title 10, USC, Chapter 61, Retirement or Separation for Physical Disability, and Department of Defense Directive 1332.18. It 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. It states in: a. Paragraph 4-3c (Action under the UCMJ). When Soldiers are under investigation or are charged with an offense under the UCMJ that could result in a punitive discharge (dismissal, dishonorable discharge, or bad conduct dis-charge), they remain eligible to be referred to and complete the medical evaluation board (MEB) phase of the DES. Eligibility for the physical evaluation board (PEB) occurs when one of the actions listed below occurs. (The PEB or U.S. Army Physical Disability Agency (USAPDA), as applicable, will suspend adjudication or disposition when UCMJ action is initiated during the PEB or USAPDA review phases. These cases remain suspended until final UCMJ action is taken or one of the following events occurs.) * the investigation ends without charges * the officer exercising proper court-martial jurisdiction dismisses the charges * the officer exercising proper court-martial jurisdiction refers the charge for trial by summary court-martial * court-martial conviction does not include confinement and discharge or Soldier completes confinement without discharge b. Paragraph 4-3f (Enlisted Soldiers pending administrative separation). (1) Enlisted Soldiers who are approved for discharge in lieu of trial by court- martial are ineligible for referral to the MEB and PEB phases of the DES (see AR 635– 200). If the Soldier is in the DES process, their DES case will be terminated, and the Soldier is discharged in lieu of trial by court-martial. (2) Soldiers under processing for an administrative separation for fraudulent enlistment or misconduct remain eligible to be referred to the MEB. The Soldier’s commander must notify the Soldier’s PEB Liaison Officer in writing that administrative separation action has been initiated. The Soldier’s completed MEB must be referred to the Soldier’s General Court-martial Convening Authority (GCMCA) in accordance with AR 635-200 to determine whether the Soldier will be referred to the PEB. Approval and suspension of an AR 635-200 separation action is not authorized when the Soldier is pending both an AR 635-200 and AR 635-40 action. The GCMCA must decide which action to pursue (as described in AR 635-200). Soldiers continue to be eligible for these administrative separation actions up until the day of their separation or retirement for disability even though their PEB findings have been previously completed and approved by USAPDA for the Secretary of the Army. In no case will a Soldier, being processed for an administrative separation for fraudulent enlistment or misconduct be discharged through the DES process without the approval of the GCMCA. c. Paragraph 4-3f (3) for administrative separation actions other than those addressed in paragraphs 4-3f (1) and 4-3f (2), referral and disposition under the DES takes precedence over the administrative separation action. 4. AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14, paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. (1) The separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (2) Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. 5. 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 USAPDA is responsible for administering the Army physical DES 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 (Standards of Medical Fitness), chapter 3, as evidenced in a MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an 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. 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. 6. 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. 7. 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. 8. 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) AR20220004409 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1