IN THE CASE OF: BOARD DATE: 30 June 2023 DOCKET NUMBER: AR20220009066 APPLICANT REQUESTS: * reconsideration of his previous request for medical retirement * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 1210 pages of Veterans Affairs (VA) medical records FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20180000139 on 17 September 2020. 2. The applicant states he would like to be medically retired. He is rated at 100% disability by the VA. He started having vision issues when he was enlisted. He went to medical, and they referred him to a specialist in Savannah, GA. He received several injections in his eyes, but the military did not pursue this. He later went to the VA for testing. It is in his records that his disability started before he was discharged and that is why he would like his discharge changed to medical retirement. When he was flown to a hospital by the VA to Iowa, the doctor said it was from a disease caused by bacteria. He never knew he could apply to change his discharge status to medically retired until he spoke to a service officer. 3. The applicant enlisted in the Regular Army on 6 May 2004. He held military occupational specialty 11B (Infantryman). He served in Iraq from 4 January – 10 April 2005 and 4 October 2005 – 6 January 2006. 4. In a Psychiatric examination memo from United Stated Army Medical Department Activity, Fort Stewart, GA, on 23 October 2006, shows the applicant was hospitalized and evaluated from 18-23 October 2006, for comprehensive psychiatric evaluation. It was recommended that he be returned to duty. He is cleared for all administrative actions. He will receive immediate follow up from DMHA and Army Substance Abuse Prevention at the time of discharge. He should be restricted from arms, munitions, and heavy machinery for thirty days and be reevaluated at that time. The unit has sufficient cause to do a command directed urine drug screen at any time. 5. A mental status evaluation was conducted on 23 October 2006. It was remarked that in accordance with (IAW) Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), this soldier meets the criteria for Chapter 5-13 administrative separation for Personality Disorder as indicated by the following behavioral manifestations defined by DSM-IV. Retention of such emotionally and behaviorally disabled soldiers puts them at HIGH RISK to continue to engage in behaviors (substance abuse, suicide attempts, assault, AWOL, etc.) for which psychiatric hospitalization or UCMJ action may become necessary. Further, a personality-disordered soldier represents a command liability and impairs overall unit readiness and functioning. While intensive effort may result in transient improvement in behavior, such efforts are predictably short-lived in their efficacy and ultimately result in no improvement of the Soldier's retention potential. It was the impression of the evaluator the applicant has the mental capacity to understand and participate in the proceedings, was mentally responsible, and met the retention requirements of chapter 3, AR 40-501 (Standards of Medical Fitness). 6. On 26 October 2006, a memorandum from Army Substance Abuse Program (ASAP) Officer to the applicant’s commander, notifying him of a positive test for THC (Tetrahydrocannabinol) resulted from the applicant’s urine sample collected on 19 October 2006. 7. On 1 November 2006, a memorandum from ASAP Officer to the applicant’s commander, notifying him of a positive test for THC resulted from the applicant’s urine sample collected on 24 October 2006. 8. On 3 November 2006, a memorandum from Clinical Social Worker (ASAP) to the commander stated in part: * The applicant was a medical referral to the ASAP Counseling Center on 30 October 2006 * An initial screening and evaluation were made by Ward 3A and the ASAP counseling staff and revealed that the primary substance of abuse was Cannabis * It is the considered opinion of the commander in consultation with the ASAP counselor that the Soldier be separated from military service as a rehabilitation failure 9. The applicant underwent a psychosis exam as well as a physical exam on 3 November 2006. He also had a mental status evaluation on 6 November 2006, which showed the impression the applicant has the mental capacity to understand and participate in the proceedings, was mentally responsibly, and met the retention requirements of chapter 3, AR 40-501. It was remarked: a. Diagnosis: Stimulant Intoxication, Stimulant Dependency. b. Findings: this individual does meet the retention standards prescribed in Chapter 3, AR 40-501, and there is no psychiatric disease/defect that warrants disposition through medical channels. That is the patient does not need a medical board. This individual was and is mentally sound and able to appreciate any wrongfulness in his conduct and to conform his conduct to the requirements of the law. He has the mental capacity to understand and participate in board or other administrative proceedings. c. Recommendations: administratively separated expeditiously under Chapter 9. He is cleared for all administrative actions. He will receive immediate follow up from DMHA and ASAP and should be counseled to attend all scheduled follow up. 10. On 9 November 2006, a memorandum from ASAP Officer to the applicant’s commander, notifying him of a positive test for THC resulted from the applicant’s urine sample collected on 2 November 2006. 11. On 14 December 2006, the applicant received non-judicial punishment under Article 15, of the Uniform Code of Military Justice for between on or about 20 September and 19 October 2006, wrongfully use marijuana. He was reduced to private/E-2 with reduction to private/E-1 suspended if not vacated before 13 June 2007. 12. On 22 January 2007, a Report of Medical History and Report of Medical Examination was conducted. The applicant’s PULHES code reflected a “2” under eyes. The summary of defects and diagnoses stated ophthalmoscopic macular puckering. 13. On 25 January 2007, a physical exam memo shows his PULHES reflecting a “3” under eyes. 14. On 2 March 2007, the applicant's immediate commander notified him of his intent to initiate separation action against him IAW chapter 9 of AR 635-200 (Active Duty Enlisted Administrative Separations), for drug rehabilitation failure. The immediate commander stated the specific reason was the applicant's failure to comply with ASAP treatment plans and goals, it has been determined that further rehabilitation efforts in a military environment are not practical in light of his lack of progress. The commander recommended a general discharge. The applicant acknowledged receipt. 15. The applicant having been afforded the opportunity to consult with counsel he declined he opportunity. Having been advised by his commander of the basis for the contemplated action to separate him for alcohol drug abuse rehabilitation failure under AR 635-200, Chapter 9, and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights. He did not make a statement in his own behalf. He understood that he may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge is issued to him. 16. The applicant’s chain of command recommended he be separated from the Army prior to the expiration of his current term of service IAW AR 635-200, chapter 9, for alcohol or other drug abuse rehabilitation failure. The chain of command also recommended he receive a general, under honorable conditions discharge. 17. On 14 March 2007, the separation authority approved separation from the Army IAW AR 635-200, chapter 9. He directed his service be characterized as general, under honorable conditions. 18. Accordingly, he was discharged on 3 April 2007, with a general, under honorable conditions character of service for drug rehabilitation failure. His DD Form 214 shows he completed 2 years, 10 months, and 28 days net active service this period. 19. On 8 July 2009, the Army Discharge Review Board (ADRB) reviewed his discharge and voted to upgrade the discharge character of service to honorable. The ADRB also considered the narrative reason for separation but found that the reason for discharge was fully supported by the record and voted not to change it. 20. His original DD Form 214 was voided, and he was issued a new DD Form 214 that shows he was discharged IAW chapter 9 of AR 635-200 due to Drug Rehabilitation Failure, with an honorable characterization of service. 21. In his previous request (AR20180000139) on 17 September 2020, the Board considered his application under procedures established by the Secretary of the Army and determined that the evidence presented does not demonstrate the existence of a probable error or injustice. The Board denied his request. 22. The applicant provides his 1210 pages of VA medical records in support of his claim. 23. By regulation (AR 635-200), a member who has been referred to the ASAP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. The narrative reason for separation of such member is "Drug (or Alcohol) Rehabilitation Failure." 24. 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. 25. Title 38, U.S. 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. 26. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the DVA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 27. MEDICAL REVIEW: a. 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 the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is again applying to the ABCMR in essences requesting a referral to the Disability Evaluation System (DES). He states: “I visited the Army hospital about my eyes while enlisted and they had sent me to a specialist in Savannah Georgia. After I had been separated from the Army, I was sent to the University of Iowa where many tests were run on me and they determined me to have Multifocal choroiditis caused by bacteria. If I did not start smoking Marijuana, I would have been discharged medically.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of service under consideration shows he entered the regular Army on 6 May 2004 and was honorably discharged on 3 April 2007 under authority provided in chapter 9 of AR 635-200, Active Duty Enlisted Administrative Separations (6 June 2005), Alcohol or Other Drug Abuse Rehabilitation Failure. d. Multifocal choroiditis (MFC) is an inflammatory disorder characterized by swelling of the eye and multiple lesions in the choroid, a layer of blood vessels between the white of the eye and the retina. Symptoms include blurry vision, floaters, sensitivity to light, blind spots and mild eye discomfort. The cause is unknown and usually affects both eyes. MFC is generally treated with steroid medication that can be taken orally or injected into the eye. Multifocal choroiditis is a chronic condition; thus symptoms may return or worsen even after successful treatment. In the applicant’s case, it caused retinal scarring which led to his legal blindness. e. There is no medical documentation with the application. Review of his electronic medical records in AHLTA showed he was seen for a dry left eye 6 August 2006. His uncorrected visual acuities were 20/20 (normal) and he was discharged with artificial tears and instructions for proper eye care. When seen by optometry on 29 December 2006, his distant visual acuities were greater (worse) than 20/200 in each eye. The applicant was referred to an outside retinal specialist. The final AHLTA encounter is a provider telephone consult dated 16 April 2007 in which the provider wrote: “Left message on patient's cell phone after receiving consultation letter from retinal specialist, Dr. S., who's been following the patient since winter 2006 for CNV OS {choroidal neovascularization, left eye}. His vision has reportedly improved OS from 20/200 to 20/40 after his third Lucentis injection. I left message that I had spoken with director of PEBLO (Dr. Merced) who advised that no MEB should be done on this soldier since his chapter has already been initiated. I advised the patient to call Dr. S.'s office so that they could provide contact information to a retinal specialist in the area to which the patient will be moving (per Dr. S.'s letter, Nebraska) for continuity of care. f. On 3 November 2006, the applicant was recommended for separation processing by a treating clinical social worker after failing drug rehabilitation (marijuana). He noted “Soldier's failure to comply with treatment plans and goals further rehabilitation efforts in a military environment are not practical in light of the Soldier's lack of progress.” g. The applicant underwent a mental status evaluation on 6 November 2006. The psychiatrist wrote: “This individual does meet the retention standards prescribed in Chapter 3, AR 40-501, and there is no psychiatric disease/defect that warrants disposition through medical channels ... This individual was and is mentally sound and able to appreciate any wrongfulness in his conduct and to conform his conduct to the requirements of the law. He has the mental capacity to understand and participate in board or other I administrative proceedings. h. He also recommended the applicant be administratively separated for failing drug rehabilitation. His separation had been approved by the brigade commander on 14 March 2007, and he was separated with an Under Honorable Conditions (General) characterization of service. i. Paragraph 4-3a of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006) was the basis for not referring him to the DES: “Except as provided below, an enlisted member may not be referred for physical disability processing when action has been started that may result in his administrative separation with DD Form 794A (Discharge Certificate (Under Other than Honorable Conditions)).” j. While the applicant had received an Article 15 for repeated positive urinalysis test for marijuana, there is no evidence that an Under Other than Honorable Conditions discharge was ever on the table. His commander had recommended he receive an Under Honorable Conditions (General) discharge, and this is what he received. Furthermore, the applicant’s characterization of service was upgraded to honorable by the Army Discharge Review Board in July 2009. While they confirmed that is discharge was both proper and equitable, they found: “The government introduced into the discharge packet the results of a command directed competence for duty (i.e., fitness for duty) biochemical test. This is limited use information as defined in Chapter 6, AR 600-85. Use of this information mandates award of a fully honorable characterization of service.” k. Paragraph 9-4 addresses the characterization of service for Soldiers being separated following rehabilitation failures. It states they may receive an honorable or under honorable conditions. However: “An honorable discharge is mandated in any case in which the Government initially introduces into the final discharge process limited use evidence as defined by AR 600–85, paragraph 6–4.” l. The applicant was both eligible for and had a medical condition which should have been referred to the DES. Paragraph 7-1 of AR 40-400, Patient Administration, states in part: “If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the physical evaluation board liaison officer (PEBLO).” Paragraph 1–33a of AR 635-200, Active Duty Enlisted Administrative Separations, (6 June 2005), notes that disposition through medical channels takes precedence: “Except in separation actions under chapter 10 and as provided in para 1–34b, disposition through medical channels takes precedence over administrative separation processing.” m. Review of his records in JLV shows he was awarded a 50% service-connected disability rating for Maculopathy with Chorioretinal Scarring” on 4 April 2007 (the day after his discharge) which was increased to 100% for “Loss of Eye, Impaired Vision in Other” effective 7 October 2009. n. It remains the strong opinion of the Agency Medical Advisor that referral of his case to the DES is warranted. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board found partial relief is warranted. The applicant’s contentions, the military record, medical concerns, the medical advisory opinion, and regulatory guidance were carefully considered. Based upon the preponderance of the evidence, the Board agreed the applicant’s record should be referred to the Office of the Surgeon General for medical evaluation consideration, with all relief dependent upon a final medical determination. 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 :x :x :x GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and amendment of the ABCMR's decision in Docket Number AR20180000139 on 17 September 2020. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that 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 changing his type of discharge without evaluation under the IDES. 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. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. AR 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 9 contains the authority and outlines the procedures for discharging Soldiers because of alcohol or other drug abuse. A member who has been referred to the ASAP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation. Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures. The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required. However, an honorable discharge is required if restricted-use information was used. 3. 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 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an 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 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. 4. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. 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. 5. 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. 6. 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. 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. 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. 9. Title 10, U.S. Code, section 1556 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) AR20220009066 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1