IN THE CASE OF: BOARD DATE: 20 July 2023 DOCKET NUMBER: AR20220011452 APPLICANT REQUESTS: * reconsideration of her previous request to upgrade her uncharacterized discharge due to failure to meet procurement medical fitness standards to an honorable characterization due to physical disability * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Progress Notes (3 Pages) * two Department of Veterans Affairs (VA) Letters * VA Rating Decision 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 AR20210010366 on 10 February 2022. 2. The applicant states she is requesting the “Kurta Memorandum” be applied to her circumstances due to her VA diagnosed service-connected mental health condition. She is requesting an upgrade of her character of service because it was driven in part by post-traumatic stress disorder (PTSD) and military sexual trauma (MST) which were not considered at the time of discharge. At the time of discharge, she feared retaliation; she wanted to forget about it and block it out fearing ill treatment. She believed the MST might happen again. She felt seeking assistance would cause her to be labeled weak or unwarranted of being fit to serve in the military. She was traumatized. Therefore, she believes under the circumstances she should receive an upgrade. She believes it is unfair for her not receive a service-connected disability discharge. 3. The applicant provided: a. VA Progress Notes dated between March and June 2021 and 20 April 2022 confirming she attended group therapy. VA Progress Notes, dated 20 April 2022, also confirm she was seen face-to-face for a scheduled appointment for individual therapy following a diagnosis/diagnoses and problems involving: * Borderline Personality Disorder * PTSD * Persistent Depressive Disorder with persistent major depressive episode * Generalized Anxiety Disorder b. VA Rating Decision, dated 17 August 2022, showing an evaluation for PTSD with major depressive disorder which was rated 70% disabling was increased to 100%, effective 12 July 2022. Service connection for borderline personality disorder was denied. c. Two VA Letters, dated 30 August 2022, showing she was granted a combined service-connected evaluation of 100 percent (%), effective 1 August 2022. 4. On 25 January 1989, the applicant enlisted in the United States Army Reserve (USAR) for a period of 8 years in the delayed entry program (DEP). She was discharged from the DEP and enlisted in the Regular Army for a period of 6 years on 1 March 1989, in pay grade E-1. 5. The applicant was ordered to report to the 42nd Adjutant General Battalion (Reception), Fort Dix, NJ, on 1 March 1989. She was reassigned for basic training on 7 March 1989. 6. A DA Form 3349 (Physical Profile), dated 8 March 1989, shows the applicant was placed on a temporary profile for asthma. Her PULHES shows T311111. Her assignment limitations were: No crawling, stooping, running, jumping, marching, or standing for long periods. No mandatory strenuous physical activity. No assignment requiring handling of heavy materials including weapons. No overhead work and no pull-ups, or pushups. A physical profile, as reflected on a DA Form 3349 (Physical Profile), SF 88, or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 7. A DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 14 March 1989, shows: a. Her complaint was dyspnea on exertion, and the onset of her illness was listed as early childhood. b. She was referred from Troop Medical Clinic 9 for evaluation of asthma. She stated she had a history of asthma since childhood. She thought that she had outgrown the illness but had a recurrence approximately 4 years ago. She had been maintained on Theo-Dur and “Alupent” until she discarded her medications approximately 4 days after arriving at the reception station. She had since had problems with significant dyspnea on exertion during running and road march exercises. In addition, she admitted to coughing yellow-green mucoid sputum but denied any fever or chills. Additionally, this document shows in: c. Present condition: She was in good condition at the present time at rest. d. Diagnosis: Asthma with acute Bronchitis. Line of Duty: Existed Prior to Service (EPTS), not permanently service aggravated. e. Recommendation: She was unfit for enlistment according to AR 40-501, chapter 2, paragraph 24d and she should be separated from the service under the provisions of AR 635-200, paragraph 5-11. She was medically cleared for separation. f. She was informed of the medical findings, and she concurred with the proceedings and requested to be discharged without delay. g. The findings were approved by the appropriate approving authority. 8. Orders 080-119, dated 21 March 1989, show the applicant was assigned to the U.S. Army Transition Point for separation processing. 9. Accordingly, on 23 March 1989, she was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-11. She was credited with completing 23 days of net active service. Her service was uncharacterized. Her narrative reason for separation was “Did Not Meet Procurement Medical Fitness Standards - No Disability.” 10. On 1 March 2023, the Criminal Investigation Command advised the ABCMR that a search of the Army Criminal File Indexes utilizing the information provided revealed no records pertaining to the applicant. 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 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 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. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade her uncharacterized discharge due to failure to meet procurement medical fitness standards to an honorable characterization due to physical disability. She contends she experienced military sexual trauma (MST) and resultant PTSD. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the Regular Army on 1 March 1989. The applicant was ordered to report to the 42nd Adjutant General Battalion (Reception), Fort Dix, NJ, on 1 March 1989. She was reassigned for basic training on 7 March 1989; 2) The applicant was placed on a temporary profile for asthma on 08 March 1989. On 14 March 1989, she was found unfit for enlistment and should be separated from service; 3.) The applicant was discharged on 23 March 1989, Chapter 5-11-Did not meet procurement Medical Fitness Standards-No Disability with an Uncharacterized nature of service. c. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also reviewed. d. The applicant asserts she experienced MST and resultant PTSD while she was attending basic training. There is insufficient evidence the applicant reported experiencing symptoms of a mental health condition or MST during her 23 days of active service. She was identified as experiencing asthma within her first few days of basic training, which she reported experiencing since childhood. She was discharged for this medical condition. After discharge, the applicant was diagnosed with service- connected PTSD related to MST by the VA since 2015. The applicant has no history of military misconduct, and her discharge was related to a non-mental health medical condition. e. Based on the available information, it is the opinion of this advisor that there is insufficient evidence to support the applicant had condition or experience that warrants a change to her nature of service. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? No, the applicant was discharged for a medical condition incurred prior to her enlistment. There was insufficient evidence the applicant’s discharge was related to her experience of MST or resultant PTSD. Also due to the nature of her short enlistment, the nature of her service is appropriate at the current time. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition or experience actually excuse or mitigate the discharge? N/A BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of requests for changes to discharges. The Board concurred with the conclusion of the ARBA Medical Advisor that the evidence does not support a conclusion that MST/PTSD are a basis for changing the reason for the applicant’s discharge or her character of service. She was discharged due to a physical condition that existed prior to service and, because she was in an entry-level status, her service was uncharacterized in accordance with the governing regulation. Based on a preponderance of the evidence, the Board determined the applicant’s uncharacterized discharge by reason of not meeting procurement medical fitness standards was not in error or unjust. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx 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 AR20210010366 on 10 February 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. Title 10, U.S. 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. 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. 3. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 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 (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. 5. 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. 6. 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. 7. 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. 8. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 9. 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. 10. 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. 11. AR 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-1 states unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in an entry-level status. b. Paragraph 5-11 states Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty or active duty for training for initial entry training may be separated. Such conditions must be discovered during the first 6 months of active duty. For character of service, paragraph 5-1 should be adhered to. c. Section II (Terms) of the Glossary defines entry-level status for Regular Army Soldiers as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011452 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1