IN THE CASE OF: BOARD DATE: 20 July 2022 DOCKET NUMBER: AR20220001305 APPLICANT’S REQUEST: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was discharged by reason of medical disability instead of misconduct. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * Updated DD Form 214, dated 17 May 2013 FACTS: 1. Standard of Review. When arriving at its findings and making its determinations, the Board shall review the petition for requested relief independent from any previous petitions submitted to the Army Review Discharge Board or the Army Board for Correction of Military Records (ABCMR).??? 2. The applicant states while on active duty, he was sent to Tripler Army Medical Center for a circumcision surgery, however there was complications. 3. On 28 January 2003, the applicant enlisted in the Regular Army for 3 years in the rank of private first class (PFC/E-3). a. On 8 September 2003, he was assigned to the 552nd Military Police (MP) Company, Korea. b. On 4 March 2004, the applicant received a monthly performance counseling from Sergeant First Class, that informed him that he was performing good as a cook, was always motivated, and needed to show that he was conducting physical fitness training. c. On 28 March 2004, the applicant sent an email to Chief Warrant Officer Two (CW2) , Special Agent in Charge, 76th MP Detachment (Criminal Investigation Division), stating he had a lawsuit against a police department he used to work for and that previous members of that department may be working in his military unit which is making him uncomfortable. On 29 March 2004, CW2 informed First Sergeant (1SG) through email, that he could not assist the applicant. d. On 2 April 2004, the applicant emailed CW2 to inform him that his 1SG used intimidation when he approached him in reference to the initial email he sent CW2 . His 1SG told him that he and CW2 was friends and walked off angry after the applicant told him he was uncomfortable talking to him. e. On 5 April 2004, the applicant received a monthly performance counseling from Sergeant First Class , that informed him that he was performing very good, was conducting physical fitness training, and was overdue for promotion to private two (PV2/E-2). f. On 19 April 2004, the applicant was counseled by Master Sergeant (MSG) , for missing the 0500hrs formation to prepare for a live fire exercise and the 0800hrs formation for movement to the live fire exercise. He informed the applicant that he was going to refer him to the Tripler Army Medical Center and then the 121st Hospital for an emergency mental evaluation for being emotionally distraught, speaking in a very low voice, crying, and having blood shot eyes. The applicant disagreed with this counseling, however he did not provide a statement. g. A MEDCOM Form 699-R (Mental Status Evaluation), dated 20 April 2004, shows the examining psychologist found the applicant's behavior normal and passive. He was fully alert, fully oriented, unremarkable, thought clearly and normal with paranoid ideation, and had a good memory. He had the mental capacity to understand and participate in proceedings, he was mentally responsible, and met retention standards. It also shows the applicant indicated some occupational problems, feeling his 1SG was holding up his application to extend in Korea. He was psychiatrically cleared for any administrative action deemed appropriate by the command. He was recommended for a follow up to the Army Substance Abuse Program for cannabis abuse. h. On 22 April 2004, the applicant was counseled by MSG to notify him of the adverse action flag he would receive for missing curfew on 18 April 2004, failing to fulfil his 92G duties, and for his actions in the counseling he received on 19 April 2004. The applicant disagreed with this counseling, stating he was at a Korean hospital for a disease he was trying to conceal and was under a lot of stress. i. On 26 April 2004, the applicant received an adverse action flag effective 21 April 2004. j. On 30 April 2004, the applicant was counseled by 1SG for disrespecting and disobeying a superior commissioned officer, insubordinate conduct toward a non- commissioned officer, and failure to obey an order. The applicant disagreed with this counseling, stating he felt harassed and intimated by the 1SG and requested to be moved to another unit. k. A DA Form 1610 (Request and Authorization for Temporary Duty (TDY) Travel of Department of Defense Personnel), dated 17 May 2004, shows the applicant was approved for 10 days for out-patient care to go to Tripler Army Medical Center, Hawaii from his assigned unit in Korea. l. On an unknown date, the applicant sent an email to MSG stating he was on TDY in the states and was going to place an equal opportunity complaint on the 1SG and Lieutenant . On 20 May 2004, MSG stated he would inform the brigade command sergeant major. m. On 31 May 2004, the applicant was counseled by Sergeant First Class for having a $650.00 Army and Air Force Exchange Services debt. The applicant disagreed with this counseling, stating he had proof of payments and that the 1SG had been trying to get his supervisor to give him a negative counseling to prevent him from being able to extend in Korea. n. On 3 June 2004, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for missing the 0800hrs formation for unit movement to a live fire exercise on or about 19 April 2004. His punishment consisted of forfeiture of $290.00, 14 days’ extra duty and restriction, and an oral reprimand. o. An enlisted record brief, dated 15 June 2004, shows he was reduced in rank from PFC to private (PV2/E-1) effective 7 July 2003, for an unknown reason. p. Three sworn statements, dated on 16 June 2004, state: (1) PFC - o n16 June 2004, the applicant flashed a badge in the charge of quarters (CQ) area in Specialist (SPC) ’s face, stating “you work for me mother fucker” and “you don’t know what you are doing by messing with me.” (2) SPC states the applicant was involved in an accidental damage to government property on 15 June 2004. About 2310hrs the military police (MP) station requested to see the applicant. SPC attempted to inform the applicant, however the applicant was noncompliant and cursed at him. SPC informed the MP station and they sent two patrolmen to the barracks. By the time they arrived, the applicant left his room. At 0100hrs on 16 June 2004, SPC was outside, the applicant walked up to him and made remarks trying to threaten and intimidate him. a few minutes later, the applicant returned to the building and pulled out a badge in front of PFC and SPC and said “you work for me MOTHER-FUCKER.” He stood there and cursed at them, as SPC called for the MP patrol to come inside the building, the applicant took off up the stairs. (3) Staff Sergeant states at approximately 1805hrs on 16 June 2004, he spoke to the applicant and asked him where he was all day and if went off post. The applicant told him he was on post all day, slept by a dumpster because the CQ was bugging him, and that he was headed to extra duty. At approximately 1935hrs, Staff Sergeant viewed a tape from a gate at the MP station showing the applicant coming through the gate from off post. q. On 17 June 2004, the applicant received three counselings for: (1) Indebtness and writing three worthless checks in the sum of $1,500.00 on 14, 18, and 31 May 2004 for cash. The applicant disagreed with this counseling, stating he had to pay for his own expenses for his surgery while TDY. (2) Disrespecting a warrant officer, in that he sent Chief an email on 28 March 2004, that was disrespectful in nature, and on 8 and 9 June 2004, emails that were disrespectful in tone. The applicant disagreed with this counseling, stating he was sent to mental health for sending emails. (3) He was recommended for a chapter from the U.S. Army. The applicant disagreed with this counseling and asked to be rehabilitated by sending him to another unit. (4) On the same date, his immediate commander requested that he receive a company grade Article 15. r. On 29 June 2004, the applicant accepted non-judicial punishment under Article 15, UCMJ for breaking restriction on or about 16 June 2004. His punishment consisted of forfeiture of $290.00, 14 days’ extra duty and restriction, and an oral reprimand. On 6 July 2004, the applicant appealed without submitting additional matters. The results of the appeal are not on the DA Form 2627 Record of Proceedings Under Article 15, UCMJ). s. On 9 July 2004, the applicant was counseled by his platoon sergeant for failure to report to duty, extra duty, and violating restriction on 8 July 2004. The applicant disagreed with this counseling, stating his chapter was retaliation, racist, and not in good intention. He felt harassed and mistreated and was never told he was restricted to post. t. On 12 July 2004, his immediate commander requested a mental status evaluation. Dated the same date, a DD Form 2808 (Report of Medical Examination), DD Form 2807-1 (Report of Medical History) and DD Form 2697 (Report of Medical Assessment, shows he was medically cleared for separation. u. On 14 July 2004, the applicant acknowledged the referral for a mental health evaluation, however he requested to be rehabilitated. v. On 2 August 2004, the applicant received an adverse action flag effective 3 August 2004. w. On 3 August 2004, his immediate commander requested that he be separated under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b (Patterns of Misconduct). x. On 20 August 2004, he underwent a command-directed mental status evaluation. The examining psychologist found the applicant's behavior slightly hyperactive and suspicious. He was fully alert, fully oriented, anxious, thought clearly and normal, and had a good memory. He had the mental capacity to understand and participate in proceedings, he was mentally responsible, and met retention standards. The applicant was cleared for any administrative action deemed appropriate by the command. , y. On 1 September 2004, the applicant’s adverse action flag was removed as disciplinary action taken effective 1 September 2004. z. On 10 September 2004, his immediate commander notified him that he was initiating action to separate him for a pattern of misconduct under the provisions of chapter 14, paragraph 14-12b (Pattern of Misconduct), AR 635-200 with a general under honorable conditions discharge. The commander stated the basis for this action was the applicant's numerous counselings and two Article 15s for misconduct (missing movement and breaking restriction). The applicant acknowledged receipt of the notification for separation. aa. On an unknown date, the applicant consulted with counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of waiving those rights. He elected to submit a statement on his own behalf, which states he wished to continue to serve his country. He was not the worst Soldier and wanted to be rehabilitated, and states he received a recommendation from the chaplain to be transferred to another unit. ab. On an unknown date, his immediate commander recommended he receive a general under honorable conditions discharge prior to his expiration term of service under the provisions of AR 635-200, paragraph 14-12b (Pattern of Misconduct), ac. On 9 September 2004, his battalion commander recommended he receive a general under honorable conditions discharge under the provisions of AR 635-200, Chapter 14-12b (Pattern of Misconduct), not be transferred to the Individual Ready Reserve per AR 635-200, paragraph 1-35b (6) (i) and requested a rehabilitative transfer be waived per AR 635-200, paragraph 1-16d. ad. On 28 September 2004, the applicant submitted a memorandum through his battalion commander to the brigade commander (separation authority), wherein he stated "I would like the best Chapter 14 there is so that I may be able to reenter the military." He submitted counseling statements on another Soldier and further states, " ... I am not the worst Soldier in the world .... " He lastly states, "There are no other documents or materials I wish to submit for my Chapter 14." ae. On 1 October 2004, the trial counsel deemed the administrative separation packet legally sufficient. af. On an unknown date, the appropriate authority directed the applicant's separation under the provisions of AR 635-200, Chapter 14-12b (Pattern of Misconduct), with a general under honorable conditions discharge characterization of service and would not be transferred to the Individual Ready Reserve. ag. On 4 October 2004, he was assigned to the U.S. Army Transition Point, Taegu, Korea for transition processing, effective 9 October 2004. ah. On 9 October 2004, he was discharged accordingly. His DD Form 214 shows he was discharged from active duty under the provisions of AR 635-200, paragraph 14-12b (Misconduct) with a general under honorable conditions character of service. He completed 1 year, 8 months and 12 days of net active service during this period. His DD Form 214 shows in: * block 13 (Decorations, Medals, Badges, Citations and Campaign awarded or authorized: ? National Defense Service Medal ? Korean Defense Service Medal ? Army Service Ribbon ? Global War on Terrorism Service Medal * block 24 (Character of Service) - Under Honorable Conditions (General) * block 25 (Separation Authority) - AR 635-200, paragraph 14-12b * block 26 (Separation Code) - "JKA" * block 27 (Reentry (RE) Code) - "3" * block 28 (Narrative Reason for Separation) - Misconduct 4. In support of his application he provides an updated DD Form 214, dated 17 May 2004 that shows block 24 (Character of Service) was changed from under honorable conditions (general) to honorable and his initial DD Form 214 was voided. 5. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. The applicant requests his discharge reason be changed to medical due his circumcision surgery had complications. b. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), states 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. b. His record shows, after over a year of service he began receiving numerous counseling statements for misconduct. He was separated after completing more than A year and a half year of his initial 3-year contractual obligation. c. AR 635-200 states commanders will insure that adequate counseling and rehabilitative measures have been taken before initiating action to separate a member. Waiving rehabilitation applies when it would not be in the best interest of the Army as it would not produce a quality Soldier. Chapter 14 separates members who demonstrate or display patterns of misconduct. 6. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 7. 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 to the ABCMR requesting a change in the narrative reason for his 9 October 2004 discharge, in essence, a referral to the Disability Evaluation System (DES). He states: “While on active duty, was sent to Tripler Army Hospital for a surgery. Things went wrong afterwards. Please, I am 52 years old now, I’m asking to upgrade to a medical so I can go on with my life ... The Veterans Administration has not updated my DD 214. Please send them a letter of my honorable discharge immediately. Thanks.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period under consideration shows he entered the regular Army on 28 January 2003 and was honorably discharged on 9 October 2004 under the separation authority provided by paragraph 14-12b(2) of AR 635-200, Active Duty Enlisted Administrative Separations (13 December 2013): Pattern of Misconduct. It shows no periods of service in an imminent danger pay area. c. He adds in a self-authored statement “The Veterans Administration has not obeyed/adhered to your request to update my records. They are still sending me the General under Honorable. Please help me !!. Thanks” d. No medical documentation was submitted with the application and there are no encounters in AHLTA. e. The applicant’s March 2004 monthly counseling statement shows the applicant was performing well: - “Your performance during this time period was very good. - You are by far the most motivated soldier in the DFAC (dining facility) - You have shown that you conduct physical training. You passed your APFT {Army physical fitness test} three weeks ago.” f. On 22 April 2004, the applicant was given notice of the suspension of favorable action, aka flagged, for multiple performance failures. His performance continued to deteriorate, and now included multiple acts of disrespect toward both commissioned and non-commissioned officers, check kiting, insubordinate conduct, and failure to obey orders. He received his first Article 15 on 3 June 2004 and a second on 6 July 2004. Also in June, he sent several cryptic emails to at least one noncommissioned officer and began to behave erratically. From three witness statements: (1) “While walking with him, I asked {Applicant} where he was all day. He replied that he slept over by some dumpster. He added that he had to because the CQ {charge of quarters} was bugging him in his room.” (2) “At about 0100 hours 20040616, as I was walking down the sidewalk between buildings 680 and 681A, PVT {Applicant} walked up from the north side of building 681A. He began to walk towards me as I sat down on the picnic table and looked at him. He acted like he was on the phone with lawyers or someone and was trying to SCARE me in thinking something was up. When he got beside me, he started asking my name. When I said ‘why’, he said ‘SPC WHY’ into the phone and the words ‘Special Court Martial.’ He started preaching about you need to watch your back and you never know who will be the one to save you and then he said you need to be careful and watch what you say, as though he was trying to threaten or intimidate me. I just looked at him and said, ‘you need to go on’. He said a few more things, I’m not sure what. He said wait here and went for the fire escape stairs and found that the doors were locked and started back down and used the CQ entrance” (3) “On 20040616 at about 0115 hours, I witnessed PVT {Applicant} come into the CQ area flashing some sort of badge into SPC 's face. While doing this he said things on the lines of, "you work for me mother fucker" and "you don't know what you are doing by messing with me." He said this with an intimidating tone and as if he was trying to belittle SPC . Then a MP patrol walked in (PFC and PV2 ) and that's when he proceeded to run off up the stairs.” g. The erratic emails and actions were reported to his command and he was subsequently counseled on these and other infractions. He disagreed with the counselings and his written rebuttals appear nonsensical. h. The applicant underwent a command directed mental status examination on 19 July 2022. The examination was completed by a young family physician who incorrectly opined the applicant may have adjustment disorder. He was referred to the 121st Combat Support Hospital (Seoul, Korea) for further evaluation. i. A mental status evaluation completed by a clinical psychologist on 20 August 2004. He was diagnosed with Alcohol Abuse and Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. He determined the applicant met the retention standards prescribed in Chapter 3, AR 40-501 (Standards of Medical Fitness), and that there is no psychiatric disease or defect which warranted disposition through medical channels. j. In an undated memorandum, his company commander informed him of the initiation of separation action under 14-12b(2) of AR 635-200: “The reasons for my proposed action are: You have been counseled on numerous occasions about your pattern of misconduct and you have been punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for your misconduct on two separate occasions. Your acts of misconduct range from breaking restriction and missing movement. I feel it is in the best interest of the U.S. Army that you be separated from the service.” k. In an assumed to be later undated memorandum, his brigade commander directed his discharge with an under honorable conditions (general) characterization of service. l. Review of his records in JLV shows he was awarded a VA service-connected disability rating of 100% for paranoid schizophrenia effective 13 October 2006; and that he was diagnosed with delusional disorder, persecutory type, on his initial VA visit on 31 October 2006. Also noted in JLV is that the VA has the Veteran’s discharge as honorable. m. In men, schizophrenia symptoms typically start in the early to mid-20s while symptoms in women typically begin in the late 20s. The early symptoms of schizophrenia, which happen in the onset (prodrome) stage, usually aren’t severe enough for a schizophrenia diagnosis but are still a cause for concern. This stage sometimes happens quickly, only taking weeks before moving to the next stage. n. Initial symptoms of schizophrenia typically present prior to the full onset of the disorder and can be mistaken for willful misconduct. The constant reprimands and punishments against him would likely have worsened his paranoia and could have caused him to react to superiors in a way that could be misconstrued as disrespectful or disobedient. o. Symptoms experienced by patients are generally categorized as delusions, hallucinations, disorganized speech, disorganized behavior, negative symptoms, and suicidal thoughts. The applicant’s predominate symptoms seen in the case file are associated with disorganized behavior. p. Disorganized behavior refers to an overall inability to control one’s behavior across contexts, such as at home and work. Patients may have trouble with: Performing ordinary daily activities Controlling their impulses Keeping their emotions in check Containing behaviors that are considered odd or inappropriate q. People with schizophrenia are usually diagnosed between the ages of 16 and 30, after the first episode of psychosis. r. The record shows the applicant was a well performing Soldier during his first 13 months of his enlistment. He appears to have suffered a rapid onset of significantly symptomatic paranoid schizophrenia starting in mid-April 2004. Therefore, he should have been referred to the DES as this condition failed the medical retention standard of paragraph 3-33c of AR 40-501 (29 August 2003). This paragraph states a cause for referral to a medical evaluation is a dissociative disorder when “Persistence or recurrence of symptoms resulting in interference with effective military performance.” s. Paragraph 7-1 of AR 40-400, Patient Administration, states in part: “If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the physical evaluation board liaison officer (PEBLO).” t. Though the applicant was undergoing an administrative separation for multiple episodes of misconduct, it is more likely than not that his general court martial convening authority would have authorized his referral to a physical disability board as his mental health condition mitigates his UCMJ violations. u. It is the opinion of the ARBA medical advisor the applicant should be referred to the DES for further evaluation. v. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) YES (a) Did the condition exist or experience occur during military service? (a) YES (3) Does the condition or experience actually excuse or mitigate the discharge? (a) YES BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical advisory the Board concurred with the advising official finding the applicant should be referred to the DES for further evaluation. Based on this the Board granted partial relief for referral to the DES and determination how applicant should have been separated. 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 a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined 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 the applicant be discharged by reason of medical disability instead of misconduct. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, United State Code, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 2. AR 15-185 (ABCMR), prescribed the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2- 9 states that 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. 3. AR 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), provides a listing of all medical conditions and specific causes for referral to a medical evaluation board (MEB). It states: a. The various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for all enlisted Soldiers of the Active Army, Army Reserve National Guard, and U.S. Army Reserve. The medical conditions and physical defects, individually or in combination, are those, that: (1) Significantly limit or interfere with the Soldier's performance of their duties. (2) May compromise or aggravate the Soldier's health or well-being if they were to remain in the military Service. This may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring. (3) May compromise the health or well-being of other Soldiers. (4) May prejudice the best interests of the Government if the individual were to remain in the military Service. b. Soldiers with conditions listed in Chapter 3, who do not meet the required medical standards will be evaluated by an MEB. Possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from service. Physicians are responsible for referring Soldiers with conditions listed in Chapter 3 to an MEB. 4. AR 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, prescribed the specific authorities (statutory or other directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD Code “JKA” is assigned to Soldiers separated under AR 635-200, paragraph 14- 12b. 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. It also establishes the physical disability evaluation system according to the provisions of Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, and Department of Defense Directive 1332.18. It states: a. The mere presence of an impairment does not, itself, justify a finding of unfitness because of physical disability. In each case it is necessary to compare the nature and degree of physical disability present to the requirements of the duties the Soldier reasonably may be expected to perform because of tier office, grade, rank or rating. To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in AR 40-501. These guidelines are used to refer Soldier to an MEB. b. 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. c. When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. An enlisted Soldier who reenlistment has not been approved before the end of his or her current enlistment, is not processing for separation; therefore, this rule does not apply. The presumption of fitness may be overcome if the evidence establishes that: (1) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. (2) An acute, grave illness or injury or other significant deterioration of the Soldier's physical conditions occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty. d. The fact that a Soldier has a condition listed in the Department of VA schedule for Rating Disabilities does not equate to finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating, in such a way as to reasonably fulfill the purpose of their employment on active duty. e. Provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEB. Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and MOS with the medically-disqualifying condition. The PEB evaluates all cases of physical disability equitably for the Soldier and the Army. The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. 6. AR 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 14, paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. (1) The separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (2) Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. b. Chapter 1, paragraph 1-16d waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not produce a quality Soldier. 7. Title 10, U.S. Code, chapter 61, provides for the retirement and discharge of members of the Armed Forces who incur a physical disability in the line of duty while serving on active or inactive duty. However, the disability must have been the proximate result of performing military duty. It further provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220001305 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1