IN THE CASE OF: BOARD DATE: 11 May 2023 DOCKET NUMBER: AR20220009475 APPLICANT REQUESTS: reconsideration of his previous request for six years to be added to his service credit time. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Email to self, 22 June 2022 * Email to self, 10 July 2022 * Email to self, 15 July 2022 * Email to self, 16 July 2022 * Chronological Record of Medical Care, 27 September 1981 * Doctor's Progress Notes, 25 November 1981 * Authorization for treatment, 23 November 1981 * Emergency Care and Treatment, 23 November 1981 * Self-authored letter (3 pages) * Spouse letter * Definition * Spouse letter to VA * Duplicate documents 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 AR20190013832 on 15 March 2022. 2. The applicant states he was discharged due to untreated service-connected post- traumatic stress disorder (PTSD), and he would like for his time of six years to be added to his service time due to the events that happened to him in service. a. In a self-addressed email to himself he refers to his senator, Veterans Affairs, and Army Review Boards Agency stating his PTSD has destroyed him. He dreamed of having a career as a Soldier and being a captain. He went to sick call on 27 September 1981 for a stomachache. The medical staff told him they needed to stick a tube in his nose, through his throat and into his stomach. This occurred the first or second week of basic training. He was so scared, and he remembers calling out for help for his mom and dad. He remembers them trying to force the tube into his nose, but he would not let them, so they tried to force him to let them. They threw him on the floor, up against the walls, they beat him, and they handcuffed him. It was six of them which picked him up and handcuffed him to the bed, and they still held him down. They called him names, they told him that he belonged to the United States Army and that they could do anything that they wanted to do. When they finished, they pulled the tube out and it was just as worse coming out as it was going in. b. He finished his basic training and advanced individual training. Now he has PTSD from this the nightmares, he cannot sleep, the bad thoughts, and the thoughts of they could have killed him that day. His PTSD is getting worse, he sees them doing this to him over and over. The Army forced him to have PTSD, they tortured him, held him against his will, beat him, and handcuffed him for over three hours. Those six men ended his Army career. He wants answers, he wants the Army to apologize to him, and he wants his time back that he would have served if they had not done what they did to him. They gave him PTSD, all he wanted was something for his stomachache. c. In a self-authored letter (3 pages) he reiterates the above statements. The entire letter is available for the Board. d. In another email to himself 22 June 2022, he restates the same issues. The entire email is available for the Board. e. In an email to himself, 10 and 15 July 2022, he again reiterates his initial statement. He states he needs a local psychologist and psychiatrist because of the PTSD. He wants to qualify for all military benefits and housing grants. He wants an explanation of why they hurt him like they did. The entire email is available for the Board. 3. He enlisted in the Army National Guard (ARNG) on 30 July 1981. He held military occupational specialty 12B (Combat Engineer). 4. He was ordered to active-duty training (ADT) on 21 September 1981. He was honorably released from ADT on 16 December 1981 after completion of training. He completed 2 months and 26 days of net active service this period. 5. On 1 November 1984, he was released from ARNG under honorable conditions and transferred to U.S. Army Reserve Control Group (Annual Training). 6. His NGB Form 22 (Report of Separation and Record of Service) shows he was released for continuous and willful absence from military duty under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 7-10r. His NGB Form 22 shows he completed 3 years, 3 months, and 2 days of net service this period. 7. Orders D-07-052737, issued by U.S. Army Reserve Personnel Center, St. Louis, MO, on 22 July 1987, show he was honorably discharged from the Ready Reserve on 29 July 1987. 8. There is no evidence he performed 6 more years of military service in any component of the Army. 9. The applicant previously applied to the Board requesting credit for an additional six years of service. The Board considered his request under Docket Number AR20190013832. a. On 15 March 2022, after reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the available documentation and regulatory guidance, the Board found that the applicant’s separation was handled within all regulatory guidance and all due process was followed. As a result, the Board concluded there was insufficient evidence of an error or injustice warranting adding additional service credit to the applicant’s service record. b. In the adjudication of the applicant’s prior case, a medical advisory opinion was obtained from the Army Review Boards Agency (ARBA) medical advisor and it was incorporated into the ABCMR Record of Proceedings. The medical advisor reviewed the supporting documents and the applicant’s military records. A review of his available military medical records indicates he was treated on 27 Sept 1981. He was sent to the ER for nasal intubation for irrigation while in basic training. He was diagnosed with gastritis. He signed a treatment authorization form. Per the treatment note, he was discharged to MP escorts and left in cuffs. A review of JLV indicates he indicates has received services at the VA since October 2016. On 10 Nov 2016, he completed a Compensation and Pension (C&P) examination for hearing loss and tinnitus. On 21 Feb 2017, he was evaluated by a psychologist and reported that he was forced to have an unwanted medical procedure at Ft Leonard Wood. He was diagnosed with Other Specified Trauma and Stressor Related Disorder. He attended group therapy with his last session on 7 Mar 2019. He received a service-connected disability rating of 70% for PTSD effective 1 Jul 2016. His service record indicates he was honorably discharged. There is no misconduct to consider with respect to mitigation. 10. The applicant provides: a. Chronological Record of Medical Care, 27 September 1981, supporting his claim. b. Doctor's Progress Notes, 25 November 1981, showing he was admitted on 23 November and discharged on 25 November 1981. c. Authorization for treatment, 23 November 1981, supporting his claim. d. Emergency Care and Treatment, 23 November 1981, showing his arrival on 23 November 1981 at 1845. His diagnosis/assessment was ARD (acute respiratory distress). e. Spouse letter explaining her husband’s issues with PTSD. The entire letter is available for the Board. f. Definition related to inflicting severe pain or suffering. g. Spouse letter to VA related to his PTSD. The entire letter is available for the Board. 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, 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. 13. 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. 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: a. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant previously applied to ABCMR requesting to be credited with 6 more years of service time. The Board found that there was insufficient evidence to warrant a correction to his military record. The applicant is requesting reconsideration of the Board’s decision. He contends that he would have served longer if he had not developed PTSD. He stated that the Army caused his PTSD when they physically forced him to submit to nasogastric tube insertion. The applicant’s previous ABCMR proceedings and summary of his military record were included in the ABCMR ROP. The applicant was in active duty training from 19810921 to 19811216. He was released upon completion of training. The training period was characterized as honorable. b. The applicant presented on 27Sep1981 with a report of hematemesis (vomiting blood) twice in the previous 48 hours. He disclosed a history of having been diagnosed with PUD (Peptic Ulcer Disease) in June 1981. He reportedly had undergone a gastrointestinal series (UGI) and was treated conservatively with antacids. The exam revealed abdominal tenderness. He was sent to the emergency department where medical personnel sought to pass a nasogastric tube (not an uncommon practice at the time) for gastric lavage to check for ongoing gastric bleeding, prior to endoscopy. It is not a comfortable procedure. The applicant describes the procedure as being particularly traumatic for him. Stool testing for occult blood revealed trace positive results. He was diagnosed with Gastritis, Rule Out PUD. It was noted that he was uncooperative when he was told the nasogastric tube needed to be passed. MP’s were called because personnel had some difficulty restraining him. At the end of the visit, the applicant left with MP escort while in cuffs. c. JLV search revealed that the applicant’s first VA facility visit was in 2016. He indicated that he often had nightmares about being handcuffed to a bed while his stomach was pumped while in boot camp. He also had chronic sleep difficulties. On 10Mar2017, his screening for PTSD was positive—PCL-5 score at 74. After comprehensive psychiatric diagnostic testing, a psychologist endorsed the following DSM-5 diagnoses: Major Depressive Disorder, Recurrent, Moderate, with Anxious Distress, and Paranoid Personality Disorder (12May2017 MH Note). On 15Aug2022, a psychiatrist endorsed Chronic PTSD diagnosis. The applicant is service connected at 70% for PTSD by the VA. There were no behavioral health visits in the available service treatment records. His gastric condition was rated by the VA as Hiatal Hernia at 0%. Based on records available for review, there was insufficient evidence to support the applicant had conditions which failed retention standards of AR 40-501 chapter 3 at the time of discharge. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. 2. The Board concurred with the previous determination that there is insufficient evidence of an error or injustice in the applicant’s record that warrant adding additional service time. Based on a preponderance of the evidence, the Board determined the applicant’s service time is properly recorded and does not contain an error or injustice as currently documented. 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20190013832 on 15 March 2022. 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. National Guard Regulation 600-200 (Enlisted Personnel Management), in effect at the time, set forth the basic authority for the personnel management of enlisted personnel of the Army National Guard (ARNG). Chapter 7 of NGR 600-200 covered, in pertinent part, the separation of enlisted personnel from the ARNG through discharge from the appropriate State. Unless concurrently discharged from his/her enlistment from the Reserve of the Army, discharge was from the ARNG of the State only. Specific categories for separating members under the provisions of this chapter included misconduct, unsatisfactory participation, unsatisfactory performance, and failure to meet the standards of Army Regulation 600-9 (Weight Control). An enlisted member separated under the provisions of this chapter would be furnished a certificate determined solely on the member’s record of military service. Normally, a general discharge certificate (NGB Form 56a) would be awarded to a member discharged from the ARNG only, who reverted to the control of the Army Reserve, and whose military records was not sufficiently meritorious to warrant an honorable discharge. 2. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of his or her military service. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty (emphasis added). It provides a brief, clear-cut record of active-duty service at the time of release from active duty, retirement, or discharge, and is not intended to have any legal effect on termination of a Soldier's service. A DD Form 214 will be prepared for each Soldier as indicated: a. Active Army Soldiers on termination of active duty by reason of administrative separation (including separation by reason of retirement or expiration of term of service), physical disability separation, or punitive discharge under the Uniform Code of Military Justice; b. Reserve Component (RC) Soldiers completing 90 days or more of continuous ADT, Full-Time National Guard Duty, active duty for special work, temporary tours of active duty, or Active Guard Reserve service. Also, RC Soldiers separated for cause or physical disability regardless of the length of time served on active duty; c. Army National Guard (ARNG) and USAR Soldiers mobilized under Title 10, U.S. Code, sections 12301(a), 12302, or 12304, and ARNG Soldiers called into Federal service under Title 10, U.S. Code, chapter 15 or section 12406, regardless of length of mobilization, when transitioned from active duty. A Soldier who reports to a mobilization station and is found unqualified for active duty will be excluded from this provision. He or she will only receive a DD Form 220 (Active Duty Report); and d. RC Soldiers completing initial ADT that results in the award of an MOS even when the active duty period was less than 90 days. This includes completion of advanced individual training under the ARNG of the United States Alternate Training Program or USAR Split Training Program. 3. Title 38 U.S. Code 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. 4. Title 38 U.S. Code 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. 5. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 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; traumatic brain injury; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 7. 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. 8. 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). 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. 9. Army Regulation 635-40 (Physical 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. 10. 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. 11. Section 1556 of Title 10, U.S. 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) AR20220009475 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1