IN THE CASE OF: BOARD DATE: 25 August 2022 DOCKET NUMBER: AR20220001108 APPLICANT REQUESTS: as the spouse and Court appointed conservatrix of the incapacitated former service member (FSM), an upgrade of his character of service to honorable, and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in: * block 18 (Remarks) – his Reserve Obligation Termination Date * block 25 (Separation Authority) – an appropriate authority for Medical Retirement at 100% disability * block 28 (Narrative reason for separation) – Disability Retirement APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * ACTS Online application in lieu of DD Form 149 (Application for Correction of Military Record), 17 November 2021 * Self-authored Statement, Applicant, 10 November 2021 (59 pages) * Service Medical Records, June-August 1991 * DoD Directive 1332.41, 23 April 2007 * Report of Physical, Psychological, or Other Examination, 2 May 2018 * Order, Conservatorship Order, 1 June 2018 * Letter of Conservatorship, 4 June 2018 * Veterans Administration Durable Power of Attorney and Living Will, 26 July 2018 * 175 pages of medical documents from the Veterans Administration * memorandum, Secretary of Defense, 3 September 2014 (Supplemental Guidance to Military Boards for Correction of Military Records Considering Discharge Upgrade Requests by Veterans Claiming Post-Traumatic Stress Disorder (PTSD)) * memorandum, Principal Deputy Under Secretary of Defense, 24 February 2016 (Consideration of Discharge Upgrades Pursuant to Supplemental Guidance to Military Boards for Correction of Military Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD or Traumatic Brain Injury (TBI)) * memorandum, Office of the Under Secretary of Defense, 25 August 2017 (Clarifying Guidance to Military Discharge Review Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modifications of the Discharge Due to Mental Health Conditions, Military Sexual Trauma or Sexual Harassment) * memorandum, Under Secretary of Defense, 25 July 2018, (Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations) 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 AR20180013654 on 10 November 2020. 2. The applicant provides evidence in the form of new statements and new documentary evidence that warrants Board consideration. 3. The applicant states, on behalf of her spouse, the FSM: a. She did not receive the Board's decision in a timely manner and requests an extension to the 1 year statute of limitations to apply for an appeal of the issues in this case. b. The Board erred in its Record of Proceedings on 11 November 2020 when it concluded the FSM: * received counseling on 26 June 1991 for an entry-level separation * received counseling for a recommendation for an entry-level separation * underwent a mental status evaluation on 26 June 1991, as it was received on 2 August 1991 * was initially notified on 26 June 1991 by his commander's intent to separate him under provisions of Army Regulation 635-200, chapter 11 c. The FSM was not of sound mind and body when his separation document was signed as he was heavily medicated and in a psychotic state of mind. He was unaware of any benefits or rights that he may have had and was coerced into signing his documentation. He was unjustly and improperly discharged from active duty. d. An upgrade for medical retirement benefits is warranted. Disability separations usually result in an honorable or entry level separation. He is 100% service-connected for bipolar disorder with post-traumatic stress disorder (PTSD), unspecified depression, unspecified anxiety, traumatic brain injury, headaches, and erectile dysfunction. e. His DA Form 4707 (Entrance Physical Standards Board (EPSB) Proceedings) stated he had no prior history of psychiatric treatment and this was verified by his mother who stated there was no prior history of psychiatric behavior in him nor was there any family history of such. His Armed Services Vocational Aptitude Battery (ASVAB) scores were exceptional and allowed him the field of his choice, so he chose the medical field. f. His Drill Sergeant singled him out with a special tortuous treatment "Shark Attack," which made him unable to verbally explain this treatment effectively causing him additional confusion, frustration, and anger. His Drill Sergeants stuck him in the head with an M-16 knocking him unconscious for an indeterminate period. He was hospitalized for 30 days and prescribed a maximum dosage of 26 mg of Haldol medication. He was not given a traumatic brain injury (TBI) exam, X-ray, CT Scan, or MRI while in service. Army medical professionals covered up his physical abuse and focused on his mental state. g. He had a sudden onset of pathophysiologic consequence of his traumatic brain injury. Confirmed findings of TBI effects are mentioned in medical service records and in VA medical records 22 July 2019, 31 January 2020, 5 November 2020, 27 December 2020, 11 March 2021, 8 April 2021, 14 July 2021, and 29 July 2021. h. As a direct result of the standard of medical care from the U.S. Army, the FSM suffered pain that will continue unabated into the future, suffered loss of household services in the past and into the future, incurred significant legal bills and expenses, had extreme mental and emotional sorrow and anguish, and suffered TBI residuals that he will carry for the rest of his life. 4. On 17 June 1991, he enlisted in the Regular Army for 6 years at age 17. 5. On 24 June 1991, he began basic combat training at Fort Dix, NJ. 6. On 25 June 1991, he underwent a mental health evaluation by the Chief Psychologist, Community Mental Health Service, Fort Dix, at the request of his command. The Chief Psychologist, LTC Ph.D.: a. Noted an impression of brief reactive psychosis. b. Remarked this Soldier's condition appeared to represent a deeply ingrained maladaptive pattern of behavior of long duration which interfered with his ability to perform duty. His ability to function effectively in the military environment was significantly impaired. It was unlikely that he would develop sufficiently through treatment, counseling, discipline, reassignment, or rehabilitative efforts to become a satisfactory Soldier. He did not appear to have the adequate coping resources needed to complete basic training. He was likely to become a managerial or behavioral problem and may act out in self defeating or impulsive ways. He denied suicidal or homicidal ideation, intent, or plan. c. Recommended strongly that he be considered for separation and that this be accomplished as expeditiously as possible. Based on all available information, his condition may impair his judgement, reliability, or stability. Recommended denial of access to weapons, medications, sharp objects, with close supervision. 7. On 26 June 1991, he was counseled following his Community Mental Health evaluation (DA Form 4856). The counselor noted the Soldier was unable to engage in conversation, his mind wandered, he was disoriented, hypersensitive to his surroundings, fearful, and slow of speech. The counselor concurred completely with the recommendations of the CMH memorandum. 8. On 26 June 1991, his company commander counseled him of his intent to recommend his discharge from the service under the provisions of Army Regulation 635-200, for an entry-level separation (DA Form 4856). During this counseling, his commander noted that despite efforts by the chain of command and assistance agencies (Community Mental Health and the Brigade Chaplain), he continued to display an unconscious awareness of his surroundings. Along with his inability to get along with the members of his platoon, and to follow orders given by his Drill Sergeants, Community Mental Health and the Brigade Chaplain, his company commander recommended he be discharged from the Army. 9. On 26 June 1991, the applicant’s immediate commander notified the FSM of his intent to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, Entry Level Separation (ELS) with uncharacterized service, and advised him of his rights. The commander stated the specific reason for the proposed action was the applicant’s emotional state. He advised the applicant that if his separation was approved, it would be described as an entry level separation. He understood he had the right to consult with consulting counsel, to make statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, the request a separation physical, and to waive his rights in writing. 10. On the same date, he acknowledged receipt of the proposed separation action and the rights available to him. He waived his right to consult with consulting counsel, waived his right to make statements in his own behalf, and waived his right to undergo a separation physical. He elected to obtain copies of the documents that would be sent to the separation authority supporting the proposed separation. He initialed his understanding of each right listed and acknowledge his rights notification with his signature. 11. On 26 June 1991, the applicant’s intermediate commander recommended the FSM be separated from the service. The commander stated he enlisted for training in military occupational specialty 91D (Operating Room Specialist), began basic training on 24 June 1991, and had not successfully completed basic training. He further noted the FSM had not been recycled for rehabilitation and requested a waiver of rehabilitative requirements under the provisions of Army Regulation 635-200, paragraph 1-18d, as further active duty would create serious disciplinary problems or be hazard to the military mission or to the Soldier; be inappropriate because the Soldier was resisting all rehabilitation attempts; would not be in the best interests of the Army as it would not produce a quality Soldier. 12. On 11 July 1991, the separation authority (Battalion Commander, 1st Battalion, 26th Infantry, 3d Basic Combat Training Brigade) approved the applicant’s entry-level separation, under the provisions of Army Regulation 635-200, paragraph 11-3(a), and directed that he not be transferred to the U.S. Army Reserve (Individual Ready Reserve). 13. The applicant provides medical records showing the FSM was admitted to Walson Army Hospital on 16 July 1991. 14. On 5 August 1991, Entrance Physical Standards Board (EPSBD) Proceedings (DA Form 4707) found the applicant failed to meet medical procurement standards following a diagnosis of schizophreniform disorder, acute, severe, manifested by disordered thought processes and content, auditory hallucinations, confusion, and abnormal affect. Stress was minimal, routine basic training. Predisposition was mild with no prior history or family history of psychotic disorder. Impairment for military duty was definite. Impairment for social and industrial adaptability was moderate at the time. The Board found he was medically unfit for appointment or enlistment in accordance with current medical fitness standards and in the opinion of the evaluating physicians the conditions exited prior to service (EPTS). The board found him unfit for enlistment according to Army Regulation 40-501 (Standards of Medical Fitness), chapter 2, paragraph 30 and recommended his separation from the service under the provisions of AR 635-200, paragraph 5-11, and medically cleared him for separation. 15. On 12 August 1991, the EPSBD Liaison Officer notified the Soldier of the medical findings of the EPSBD. The Soldier indicated he understood that legal advice of an attorney employed by the Army was available to him or that he may consult civilian counsel at his own expense. He also understood he may request to be discharged from the Army without delay or request retention on active duty. He concurred with the findings of the EPSBD and requested to be discharged from the U.S. Army without delay. 16. On 12 August 1991, the Company Commander recommended his discharge from the service. 17. On 15 August 1991, the Acting Commander, 1st Battalion, 26th Infantry, 3d Basic Combat Training Brigade, Fort Dix, approved the findings of the EPSBD and indicated retention was not practical. 18. On 21 August 1991, Headquarters (HQ), U.S. Army Training Center (USATC) and Fort Dix, NJ issued Orders 233-101, discharging the FSM effective 22 August 1991. 19. The applicant provides medical records showing on 22 August 1991 the FSM was discharged from Walson Army Hospital with a prescription of 15 mg of Haldol to be taken once at night before bedtime. 20. On 22 August 1991, HQ, USATC, Fort Dix, NJ, issued orders 234-093, showing the authority for his discharge was Army Regulation 635-200, paragraph 5-11. 21. On 22 August 1991, he was discharged with uncharacterized service. His DD Form 214 and two subsequently issued DD Forms 215 (Correction to DD Form 214) show he completed 2 months and 6 days of net active service this period with no time lost. It further shows in: * block 6 (Reserve Obligation Termination Date) – Year 00, Month 00, day 00 * block 18 (Remarks) - "Block 6, Period of DEP [Delayed Entry Program]: 900922- 910616//DD Form 214 ISSUED ON 910822//NOTHING FOLLOWS * block 23 (Type of Separation) – Discharge * block 24 (Character of Service) – Uncharacterized * block 25 (Separation Authority) – Army Regulation 635-200, paragraph 5-11 * block 28 (Narrative Reason for Separation) – Did Not Meet Procurement Medical Fitness Standard-No Disability 22. The applicant provides medical records showing the FSM was brought to Walter Reed Army Medical Center on 31 August 1991 after exhibiting bizarre behavior at home. He was discharged on 18 September 1991. 23. The applicant provided copies of: a. Witness statements from members of the FSM's former company and from his family: (1) Witness SFC 8 August 1991, a recruiter who knew the FSM since 1 August 1990, and who attested to his maturity and punctuality. (2) Witness SFC 12 August 1991, a Soldier who knew the FSM for 4 years and noted he presented a good feeling about joining the Army with a positive attitude. (3) Witness PVT 2 September 1991, a Soldier who trained with the FSM at C Company, 246th IR, who elaborated on the treatment the FSM received was harsh compared to the other Soldiers because his parents had been in the military. He noted Drill Sergeant pushed the FSM into a wall with his M-16. (4) Witness PVT 25 October 1991, a Soldier who trained with the FSM at C Company, 246th IR, who elaborated on the FSM's treatment as he was "dogged out constantly." (5) Witness PVT 25 October 1991, a Soldier who trained with the FSM at C Company, 246th IR, who elaborated on the treatment the FSM received, stating in part, Drill Sergeant struck the FSM with an M-16 and pushed him into a wall. (6) Witness PVT 26 October 1991, a Soldier who trained with the FSM at C Company, 246th IR, who elaborated on the treatment the FSM received, stating in part, Drill Sergeant slammed and hit the FSM against a wall, gave him extra PT for several hours, and made up a statement about him going AWOL. (7) Witness PVT 2 November 1991, a Soldier who trained with the FSM at C Company, 246th IR, who elaborated on the treatment the FSM received, stating in part, the Drill Sergeants dogged the FSM more than the other privates because he could hold out. He stated Drill Sergeant slammed the FSM against a wall. (8) A 5-page witness statement from the FSM's mother who elaborated on the consequences of his discharge to her family, the care he required, the stress, and the medical health costs they incurred as a result of his mental state after he was discharged. 24. On 11 October 2006, the Army Discharge Review Board determined his discharge was both proper and equitable and voted not to grant the requested relief. 25. On 10 November 2020 in ABCMR Docket AR20180013654, the Board considered the DoD guidance on liberal consideration when reviewing discharge requests and determined there was insufficient evidence to grant relief. 26. The applicant provided copies of: a. Veterans Administration treatment and progress notes with statements from family members and people who know him, showing his treatment for TBI, PTSD, his prescriptions and course of treatment for depression, anxiety, mood disorders, and documentation establishing a nexus between his service and his conditions. b. Memorandum, Secretary of Defense, 3 September 2014 (Supplemental Guidance to Military Boards for Correction of Military Records Considering Discharge Upgrade Requests by Veterans Claiming Post-Traumatic Stress Disorder (PTSD)), known as the "Hagel Memo." c. Memorandum, Principal Deputy Under Secretary of Defense, 24 February 2016 (Consideration of Discharge Upgrades Pursuant to Supplemental Guidance to Military Boards for Correction of Military Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD or Traumatic Brain Injury (TBI)), known as the "Carson Memo." d. Memorandum, Office of the Under Secretary of Defense, 25 August 2017 (Clarifying Guidance to Military Discharge Review Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modifications of the Discharge Due to Mental Health Conditions, Military Sexual Trauma or Sexual Harassment), known as the "Kurta Memo." e. Memorandum, Under Secretary of Defense, 25 July 2018, (Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations), known as the "Wilkie Memo." f. DoD Directive 1332.41, Boards for Correction of Military Records and Discharge Review Boards. 27. 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. 28. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying again to the ABCMR requesting a reconsideration of their 10 November 2020 full denial of his request for an upgrade of his uncharacterized discharge and a medical discharge for his mental health condition and traumatic brain disease. He states through his conservator: “Applicant requests expedite review due to the “Hagel Memo”, “Kurta Memo”, and Financial Hardship. A reconsideration to change the Applicant’s uncharacterized discharge to correct an error or remove an injustice and honor a medically retired discharge with a 100 percent disability rating from the date of discharge. Applicant discharge was the result of a mental health condition (including PTSD), Traumatic Brain Injury (TBI), or physical assault/harassment by his superiors. Please refer to the "Kurta Memo." … Applicant completed the entrance exam for the U.S. Army with no pre-existing conditions. His ASVAB scores were exceptional, allowing him the field of choice ... Applicant’s sudden onset Pathophysiologic consequences of his traumatic brain injury suffering from the “Special Torturous Treatment / Shark Attack” at the hands of his superiors are physical, cognitive, and behavioral. Although TBI was not diagnosed in-service, confirmed findings of TBI effects mentioned below is within service medical records and confirmed findings on 22 July 2019…” b. The Record of Proceedings details the applicant’s service and outlines the circumstances of the case. His corrected DD 214 shows he entered the regular Army on 17 June 1991 and received an uncharacterized discharge on 22 August 1991 under authority provided by paragraph 5-11 of AR 635-200, Personnel Separations – Enlisted Personnel (17 September 1990): Separation of personnel who did not meet procurement medical fitness standards. c. A request for a discharge upgrade and change in the reason for separation was denied in full by the ADRB on 11 October 2006 (AR20050018308). A request for a discharge upgrade and military disability retirement was denied in full by the ABCMR on 10 November 2020 (ARA20180013654). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. This review will concentrate on the new evidence submitted by the applicant No medical evidence was submitted with the initial application nor with the request for reconsideration. d. While referenced in their application, the Liberal Consideration Policies outlined in the Secretary Hagel and Undersecretary Kurta memorandums address a former Service Member’s request to modify the characterization of their discharge based on a pre- discharge mental health condition and do not apply to disability processing or compensation. e. Paragraph 5-11a of AR 635-200 reads in part: “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 AD {active duty} or ADT {active duty for training} for initial entry training, may be separated. Such conditions must be discovered during the first 6 months of AD. Such findings will result in an entrance physical standards board.” f. A military medical record shows the applicant was diagnosed with schizophreniform disorder. He was referred to an entrance physical standards boards (EPSBD) IAW paragraph 5-11a of AR 635-40 for this condition. These boards are convened IAW paragraph 7-12 of AR 40-400, Patient Administration. This process is for enlisted Soldiers who within their first 6 months of active service are found to have a preexisting condition which does not meet the enlistment standard in chapter 2 of AR 40-501, Standards of Medical Fitness, but does meet the chapter 3 retention standard of the same regulation. The fourth criterion for this process is that the preexisting condition was not permanently service aggravated. g. From the narrative on his for his Entrance Physical Standards Board (EPSBD) Proceedings dated 2 August 1991: “This is a 17-year-old single male who was in basic training for approximately 4 weeks prior to his admission to the hospital. The unit had noted that he has had trouble with basic since staring and they found him to be odd, often mumbling to himself or talking nonsense. He was seen by CMHS {community mental health service} at the end of June with a recommendation for ELS {entry level separation} which was near completion. The morning of admission the patient became extremely agitated at the unit and reportedly “trashed” his barracks area to include ripping up a mattress. A drill sergeant has stated that the patient said that he thought his mother was inside the mattress. The patient admits to auditory hallucinations and identifies the voice as his mother’s voice in a voice of command type nature telling him to “get up and go” and other motivational slogans … The patient was admitted to the ward on 16 July and since admission has been treated with Haldol initially at 10 mg twice a day, now at 10 mg each night. There has been significant improvement in his behavior in that he is now able to participate in ward and milieu activities. However, at times his speech is still odd with loose associations … Mental Status Exam: This is a very tall thin male with blunted to bizarre affect. He keeps his eyes closed and when asked why, he attempted to pry them open with his fingers for several seconds. He demonstrates poverty of speech but does respond directly to questions when prompted. Occasionally his answers are of a bizarre type nature with loose associations present. There appears to be some thought blocking present. The patient appeared to be attending to auditory hallucinations at the time of the interview and he acknowledged this…” Diagnosis: Schizophreniform disorder, acute, serve, manifested by disordered thought processes and content, auditory hallucination, confusion, and abnormal affect. Recommendation: This soldier is unfit for enlistment according to AR 40-501, Chap 2, Para 30., and should be separated from the service under provisions of AR 635-200, Para 5-11. The soldier is medically cleared for separation.” h. Paragraph 2-30 of AR 50-501, Standards of Medical Fitness (15 May 1989): “Disorders with psychotic features: The causes for rejection for appointment, enlistment, and induction are a history of a mental disorder with gross impairment in reality testing.” i. On 12 August 1991, the EPSBD determined the applicant had a condition which had existed prior to service, had not been permanently aggravated by his brief service, and failed medical procurement standards. That same day, the applicant concurred with the board’s findings in selecting the option of “I concur with these proceedings and request to be discharged from the US Army without delay.” j. The case file contains numerous witness statements made by fellow Soldiers in the late summer / early fall which appear to have been part of an investigation into the treatment of the applicant prior to his hospitalization. The states are in the form of a 22- item questionnaire which begins with: “These QUESTIONS pertain to Pvt {Applicant}, stationed at C Co 420 Inf. Ft Dix, NJ during the time period of 17 June 1991 through the last time that you saw him. You are also making these statement, answering questions under no pressure whatsoever. k. These statements make clear the applicant was initially a normal appearing teenager who was the subject of excessive physical and verbal abuse by his drill sergeants. l. A summarization of their statements shows applicant was “a bright person who seemed to know what he was doing,” “regular teenager,” he was an “outgoing and kind individual,” had no problems with any other private and his attitude was like that of other privates, and “was just one of the guys.” Then a rumor started that his parents were drill sergeants, a rumor confirmed to his unit by two of his drill sergeants. This fact is confirmed in an 8 August 1991 memorandum from SFC a recruiting station commander at the time: “I have known {Applicant} since 1 Aug 1990, at which time he was still 16 years old. is one of the most mature individuals I have worked with in the five years I have been a Recruiter. already had goals set and his life planned out when I met him. His goal was to make the Army a career and to strive to out rank his mother who is an active-duty Drill Sergeant.” m. The witness statements make clear that it was at this point in time the verbal and physical abuse of the applicant by his drill sergeants took an ugly leap forward: “That’s when Drill came down hard on him.” Another Soldier wrote “His attitude was no different than any other private until the Drill sergeant found out about his family was in the military. Then the drill Sgts came down harder on him than anyone else.” Some quotes from these statements, many of which were found on multiple witness statements: - When the rumor went around that his parents were drill Sgts, the mental stress the drill Sgt put him through you could tell it was affecting him. - Drill SGT has slammed and hit PVT applicant against the wall. - Drill Sgt pushed {applicant} into the wall with an M-16. - I had seen PVT {Applicant} being dogged out and yelled at constantly - When at the Arms room, Drill Sgts shook PVT {Applicant} … while having grass drills would throw PVT {Applicant} to the ground forcefully. - I was not in the area but was told Drill Sgt really beat him physically. - I would say he had CQ {charge of quarters} for 72 hours straight. - The drill sergeant dogged him out more than the other privates. He really upset the drill sergeants cause he could hold out. - He told all the Drill SGTs even at the end of his time with us he was going to make it through and wasn’t going to be broken - All Drill SGT would talk on what they had done mentally or physically to PVT {applicant} daily - PT {physical training} and extra PT 2 hours at one time without stopping for water at a temp of 90. - Yes, PT for 1 hour at Cat 5 {FYSA: Heat category 5 (black) is for wet bulb globe indexes of greater than 90?. It mandates a work/rest cycle in minutes of 20/40 for moderate work and 10/50 for hard work with more than a quart of fluid intake per hour} - The last two or three days prior to him breaking because the Drill SGTs were really hard on him! - I guess when the drill sergeant found this out they tried to break him. I think they did. What {Applicant} went through I think was more than any one person could take! n. Review of his records in JLV sow him to have a 100% service-connected disability rating for bi-polar disorder and 70% for traumatic brain disease. He has previously been diagnosed with PTSD and schizoaffective disorder as well. o. As noted above, the EPSBD process requires four criteria be met for it to be utilized as a means of separating a Soldier. (1) The preexisting condition is identified within the first 6 months of active service. (2) The preexisting condition which does not meet the enlistment standard in chapter 2 of AR 40-501, Standards of Medical Fitness. (3) The preexisting condition does meet the retention standards chapter 3 AR 40-501, Standards of Medical Fitness. (4) The preexisting condition was not permanently service aggravated. p. The applicant’s condition clearly failed the medical retention standard stated in paragraph 3-31 of AR 40-501 (15 May 1989): “3-31. Disorders with psychotic features Mental disorders not secondary to intoxication, infectious, toxic or other organic causes, with gross impairment in reality testing, resulting in interference with duty or social adjustment.” q. And while the applicant certainly may have had a predisposition to develop or was even in the early onset period of a mental health condition at the time of his entrance onto active duty, the sustained and unwarranted physical and verbal abuse wrought on the then Soldier during his brief service undoubtedly permanently aggravated his mental health condition and possibly led to his service-connected traumatic brain disease. r. In the presence of error and injustice, it is the opinion of the ARBA Medical Advisor that a referral to the DES is clearly 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 discharge upgrade requests. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the evidence indicates the FSM’s military service may well have permanently aggravated his preexisting mental health condition. Based on a preponderance of the evidence, the Board determined the FSM’s records should be referred to the Office of The Surgeon General for review to determine if his condition warranted processing through the Disability Evaluation System. The Board further determined no other relief is warranted without benefit of the aforementioned review. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant partial amendment of the decision of the ABCMR set forth in Docket Number AR20180013654 on 10 November 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 referred to the Disability Evaluation System. a. If a review by the Office of The Surgeon General determines the evidence supports referral to the Disability Evaluation System, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any diagnoses identified as having not met retention standards prior to his discharge. b. 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. c. Should a determination be made that the individual concerned should be retired for disability, these proceedings serve as the authority 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 the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief without benefit of the review described above. 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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Paragraph 3-4(2) Entry-Level status. Service will be uncharacterized, and so indicated in block 24 of DD Form 214, except as provided in paragraph 3–9a. b. Paragraph 3-7 states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-9a Entry-level status separation. A separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status, except when— (1) Characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. (2) The Army Human Resources Command, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the Government, and Secretarial plenary authority. (3) The Soldier has less than 181 days of continuous active military service, has completed Initial Entry Training, has been awarded an MOS, and has reported for duty at a follow-on unit of assignment. d. Paragraph 5-11 sets policy and provides guidance for the separation of Soldiers Paragraph 5-11 – 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 training or initial entry training would be separated. A medical proceeding, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the Soldier's initial entrance on active duty, that the condition would had permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at that time, and the medical condition did not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. The characterization of service for soldiers separated under this provision of regulation would normally be honorable but would be uncharacterized if the Soldier was in an entry-level status. A Soldier was in an entry- level status if the Soldier had not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action. e. Section II (Terms): (1) Character of service for administrative separation - A determination reflecting a Soldier’s military behavior and performance of duty during a specific period of service. The three characterizations are honorable, general (under honorable conditions), and under other than honorable conditions. The service of Soldiers in entry-level status is normally described as uncharacterized. (2) Entry-level status - For Regular Army Soldiers, entry-level status is the first 180 days of continuous AD or the first 180 days of continuous AD following a break of more than 92 days of active military service. 3. Army Regulation 635-5 (Separation Documents) in effect at the time, provided guidance for completing the below portions of the DD Form 214. a. Block 6 - This refers to the completion date of the statutory service obligation incurred by all personnel on initial enlistment or appointment into the Armed Forces. DOD requires that an individual with no previous military service who is enlisted or appointed into the Armed Forces before 1 June 1984 must serve a period of 6 years, on or after 1 June 1984, a period of 8 years. The military service obligation (MSO) starts on the date of initial enlistment or appointment in the Regular Army (RA), Army National Guard (ARNG), and the U.S. Army Reserve (USAR) to include the Delayed Entry Program (DEP). DEP time is credited in computing this date (see block 18, item 18d for additional requirements pertaining to DEP time). For soldiers discharged, dismissed, or dropped from the Army rolls, or with an expired MSO, enter "00 00 00." Soldiers within 90 days of their MSO termination date at separation will be considered to have completed their MSO and "00 00 00" will be entered. b. Block 18 - If DEP time is included in date of Block 6, enter "Block 6, Period of DEP (enter inclusive periods of time in DEP). 4. 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. 5. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active military service. The VA, however, is not empowered by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 6. 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. 7. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. 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. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220001108 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1