IN THE CASE OF: BOARD DATE: 27 July 2023 DOCKET NUMBER: AR20220011719 APPLICANT REQUESTS: in effect, reconsideration of his prior request for a physical disability retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • ARBA online application • Identification cards • DD Form 214 (Certificate of Release or Discharge from Active Duty) • Counsel's Brief • attorney questionnaire • M_ W_ V_ letter of support • medication list • physician list • M_ P_ P_ letter of support • A_ J. V_ letter of support • J_ M. B_ letter of support • V_ D_ letter of support • C_ M_ letter of support • Army Commendation Medal (ARCOM) certificate • DA Form 638 (Recommendation for Award) • Letter of Appreciation Office of the Mayor City of Tall 'Afar • Letter of Appreciation • Memorandum for Record • DA Form 4187 (Personnel Action) • Certificate of Death (wife) • Birth Certificate (son) • Memorandum, Subjected: Separation under AR 635-200, Chapter 6, Separation because of Dependency or Hardship • Memorandum, Subjected: Separation under AR 635-200, Chapter 6, Paragraph 6-3 (Separation because of Dependency or Hardship) • Memorandum, Subjected: Debt Avoidance • Memorandum, Subjected: Debt Avoidance Counseling Statement • Memorandum, Subjected: Debt Avoidance Notice • Department of Veterans Affairs (VA) Certificate of Commissary Store and Exchange Privileges letter • VA Rating Decision • Social Security Administration (SSA) Notice of Decision - Fully Favorable • SSA Order of Administrative Law Judge • SSA Office of Disability Adjudication and Review • VA Service Treatment Records Privacy Act Request • Army Medical Records (153 pages) • VA Medical Records (718 pages) 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 AR20140006813 on 17 December 2014. 2. Counsel states: a. The applicant currently holds an honorable compassionate discharge. This discharge was based on a dependency hardship and involved errors that resulted in the grave injustice it created through its avoidance of not addressing an issue earlier. Since the applicant’s separation from the military, he has been experiencing total occupational and social impairment due to his permanent and total service-connected disability, caused by chronic, combat post-traumatic stress disorder (PTSD) with a disability rating of 100 percent from the VA since 9 October 2009. The applicant was denied Combat-Related Special Compensation (CRSC), a program that is offered to those with combat-related disabilities because of his discharge status. The applicant is currently not meeting eligibility requirements in order to qualify for the CRSC program. Furthermore, according to the 2014 Hagel Memo (Supplemental Guidance to Military BCMRs/BCNRs by Veterans Claiming PTSD) and the 2016 Carson Memo (Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military BCMRs/BCNRs by Veterans Claiming PTSD or TBI), the Board must ignore this time limit in cases involving PTSD. These policies have since been enacted since the applicant’s original discharge. Because the applicant suffered from an undiagnosed, misdiagnosed, or untreated mental health condition, including post-traumatic stress disorder (PTSD), and a traumatic brain injury (TBI), while in active-duty service, the applicant was discharged for reasons related to these conditions. The new policy would have given him a different discharge status and would have allowed him to obtain the benefits designed to recover and transition back into civilian society. Therefore, it is with substantial doubt that the applicant would have received the same discharge status under this new policy. The applicant's discharge status should therefore be upgraded to a permanent medical retirement discharge retroactively. b. The applicant is a veteran who suffers from service-related physical and mental injuries as well as other injuries and disorders which began during his time in service but were diagnosed after separation. The applicant has shown by preponderance of evidence that he is entitled to an upgrade in his discharge status. Matters of propriety, equity and justice require that the military acknowledge the severity of his service-connected disabilities. 3. The applicant underwent a medical examination on 11 September 2001 for the purpose of enlisting. The applicant’s DD Form 2808 (Report of Medical Examination) shows he was found qualified for service and assigned a physical profile of 111111. A physical profile, as reflected on a DA Form 3349 (Physical Profile) 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. 4. The applicant enlisted in the United States Army Reserve on 17 October 2001 for a period of 8 years in the delayed entry program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 4 years on 8 November 2001. He completed his required training and was awarded the military occupational specialty (MOS) 13B (cannon crewmember). 5. The applicant was deployed in support of Operation Iraqi Freedom from 21 March 2003 to 1 March 2004. He reenlisted in the Regular Army on 8 September 2004 for a period of 4 years. 6. Permanent Orders 341-030D show he was awarded the Combat Action Badge effective 7 June 2005. A DA Form 2166-8 (NCO Evaluation Report) covering August 2004 to July 2005 shows the applicant passed his Army physical fitness test (APFT) and was rated fully capable. 7. The applicant was deployed in support of Operation Iraqi Freedom from 6 March 2005 to 19 February 2006. He was awarded the Army Commendation Medal for meritorious service for this period. 8. DA Forms 2166-8 covering August 2005 to June 2006 and July 2006 to April 2007 show the applicant passed his APFTs, was within height and weight standards, and was rated fully capable. 9. A memorandum for the record, dated 3 October 2007, from the applicant’s commanding officer, Captain J_ A. C_ states, with respect to administrative separation (pursuant to AR 635-200, chapter 6, separation because of dependency or hardship) of the applicant, he is satisfied that a condition of dependency exists between the applicant and his son as the result of his wife’s death on 14 July 2007. A second memorandum for the record from the applicant’s First Sergeant states the same. 10. A DA Form 4187 (Personnel Action), dated 22 October 2007, shows the applicant’s request for early separation due to the death of his spouse which causes his immediate family to rely on him for principal care and support. 11. The applicant’s separation was approved and directed on 25 October 2007. He was appropriately counseled for debt avoidance and was notified he was indebted to the to the U.S. Government for $1,300.00. 12. A DA Form 2166-8 covering May 2007 to November 2007 shows the applicant passed his PFT, was within height and weight standards, and was rated fully capable. 13. The applicant was honorably discharged on 6 December 2007 under the provisions of AR 635-200, paragraph 6-3a for hardship. 14. The applicant applied for combat related special compensation (CRSC) on 21 July 2009 under claim #139851. He was notified on 12 August 2009 his claim cannot be processed because he is not in a retired status. 15. Counsel provided the following documents not previously considered or discussed: a. M_ W_ V_ letter of support stating she started dating the applicant in 2008 and they are now married. She describes the applicant’s behavior, reactions to daily life, anxiety, and PTSD symptoms. b. A_ J. V_ letter of support describing events from their two deployments together to Iraq, the applicant’s exposure to traumatic events and PTSD. c. J_ M. B_ letter of support describing events from their two deployments together to Iraq, the applicant’s exposure to traumatic events and PTSD. d. V_ D_ letter of support describing events from their two deployments together to Iraq, the applicant’s exposure to traumatic events and PTSD. e. C_ M_ letter of support describing events from their deployment together to Iraq, the applicant’s exposure to traumatic events and PTSD. f. A Letter of Appreciation from the Office of the Mayor City of Tall 'Afar expressing gratitude for the liberation of the city from terrorists. g. A Letter of Appreciation from the commander of the 3rd Iraqi Army Infantry Division Headquarters in AKMTB to the 3rd Armored Cavalry Regiment Headquarters. h. A VA Rating Decision, dated 25 July 2011, showing a continuation of traumatic brain injury at 10 percent. i. 153 pages Army Medical Records and 718 pages of VA medical records. 16. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 17. 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. 18. 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. 19. 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. 20. 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 applying to the ABCMR requesting reversal of the United States Army Human Resources Command’s (USAHRC) administrative determinations that neither his PTSD nor traumatic brain injury (TBI) were related to combat as defined by law; and, in essence, a referral to the Disability Evaluation System (DES). He states: “Mr. [Applicant] currently holds an honorable compassionate discharge. This discharge was based on a dependency hardship and involved errors that resulted in the grave injustice it created through its avoidance of not addressing an issue earlier. Since Mr. [Applicant]’s separation from the military, he has been experiencing total occupational and social impairment due to his permanent and total service-connected disability, caused by chronic, combat post-traumatic stress disorder, (PTSD) with a disability rating of 100% from the veterans' affairs dated Oct 9, 2009. Mr. [Applicant] was denied Combat-Related Special Compensation, a program that is offered to those with combat-related disabilities, and because of his discharge status. Mr. [Applicant] is currently not meeting eligibility requirements in order to qualify for the CRSC program. Furthermore, according to the 2014 Hagel Memo (“Supplemental Guidance to Military BCMRs/BCNRs by Veterans Claiming PTSD”) and the 2016 Carson Memo (“Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military BCMRs/BCNRs by Veterans Claiming PTSD or TBI”), the Board must ignore this time limit in cases involving PTSD. These policies have since been enacted since Mr. [Applicant]’s original discharge. Because Mr. [Applicant] suffered from an undiagnosed, misdiagnosed, or untreated mental health condition, including post-traumatic stress disorder (PTSD), and a traumatic brain injury (TBI), while in active-duty service, Mr. [Applicant] was discharged for reasons related to these conditions.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 8 November 2001 and was discharged on 6 December 2007 under provisions provided in paragraph 6-3a of AR 635-200, Active Duty Enlisted Administrative d. The applicant believes the polices of liberal consideration are applicable to the facts of this case. However, the Liberal Consideration Policies outlined in the Secretary Hagel and Undersecretary Kurta memorandums address a former Service Member’s request to modify the discharge characterization of their service based on a pre-discharge service incurred mental health condition and do not apply to voluntary administrative separation, disability processing, or for the processing of claims for Combat-Related Special Compensation (CSRC). e. His penultimate NCO Evaluation Report (DA Form 2166-8) covers the period 1 July 2006 thru 30 April 2007. It shows he passed his Army Physical Fitness Test on 7 March 2007 with a score of 291 out of 300. It shows he had continued to excel as a Soldier. His rater top-blocked him as “Among the Best” and his senior rater marked him with “2”s on a scale of 1 to 5 (lowest) for overall performance and overall potential stating: • “o promote ahead of peers • send to BNCOC phase II now • unlimited potential; must challenge with positions of greater responsibility • lives the Army values; teaches them daily to our Soldiers” f. His final NCOER with a thru date of 30 November 2007 again shows outstanding performance by a dedicated Soldier. His rater again top-blocked him as “Among the Best,” and this time his senior rater top-blocked him with “1”s stating: • promote ahead of peers • send to ANCOC [Advance Noncommissioned Officer Course] immediately • unlimited potential, groom for higher levels of responsibility in the Army • the type of NCO you want leading Soldiers during war and training them during peace time; an outstanding role model for his peers to emulate g. Unfortunately, the death of former Soldier’s spouse caused his immediate family to rely on him for primary care and support and so he requested an early separation from the Army on 22 October 2007. The brigade commander approved his request on 25 October 2007. h. Paragraph 6-3a of AR 635-200 states: “Dependency exists when death or disability of a member of a soldier’s (or spouse’s) immediate family causes that member to rely upon the soldier for principal care or support.” i. Review of the EMR shows the applicant underwent a level two post-deployment “Psychiatric Evaluation Comprehensive Examination” on 8 June 2006. The provider notes she provided him with “resources and stress management techniques,” directed him to follow-up as needed, and he was released without limitations. There are no subsequent behavioral health encounters and no TBI related encounters were identified. j. There is insufficient 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. k. Review of his records in JLV confirms that he has been awarded multiple VA service-connected disability ratings, including a 100% rating for PTSD. However, the DES compensates an individual only for 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. That role and authority is granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. l. It is the opinion of the ARBA Medical Advisor that a referral of his case to the Disability Evaluation System is warranted. BOARD DISCUSSION: 1. 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. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the evidence does not indicate the presence of a medical condition prior to the applicant’s discharge that would have been a basis for referring him to the Disability Evaluation System. Based on a preponderance of the evidence, the Board determined the applicant’s discharge for hardship was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :DB :GG :RCS 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 AR20140006813 on 17 December 2014. 8/1/2023XDonna BushCHAIRPERSONSigned by: BUSH.DONNA.MARIE.1035646074 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) 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) provides for the administrative separation of enlisted members. Chapter 6 provided for separation because of dependency or hardship. Separation under this chapter is for the convenience of the Government. Soldiers on active duty may be discharged or released (see para 6–10) because of genuine dependency or hardship. a. Dependency. Dependency exists when death or disability of a member of a soldier’s (or spouse’s) immediate family causes that member to rely upon the soldier for principal care or support. (See para 6–5 for definition of soldier’s “immediate family.”) b. Hardship. Hardship exists when in circumstances not involving death or disability of a member of the soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. (See para 6–5 for definition of soldier’s “immediate family.”) c. Paragraph 6-3.a. states dependency exists when death or disability of a member of a soldier’s (or spouse’s) immediate family causes that member to rely upon the soldier for principal care or support. 2. 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 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. 3. Title 38 USC, 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. 4. Title 38 USC, 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. 5. AR 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. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 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. AR 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. 7. Section 1556 of Title 10, USC, 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. 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 UOTHC 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. 9. 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. 10. 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. //NOTHING FOLLOWS//