IN THE CASE OF: BOARD DATE: 24 January 2023 DOCKET NUMBER: AR20220002243 APPLICANT REQUESTS: * reconsideration of his earlier requests for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) block 28 (Narrative Reason) to show disability separation or retirement * correction of his DD Form 214 block 26 (Separation Code) to reflect the appropriate regulatory authority * as a new request, removal of information from his military record indicating he is deceased and was post status performance due to pregnancy APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record), 29 November 2021 and 3 December 2021 * Self-authored Statement, 26 November 2021 * SF 600 (Medical Record), 26 May 1992 * Veterans Administration (VA) Rating Decisions, 25 March 2013 and 4 April 2013 * SF 600 (Medical Record), 26 May 1992 * (Organization) Institute, (University), paper "Costs of War", 20 June 2017 * Office of the Under Secretary of Defense memorandum, 25 August 2017 (Clarifying Guidance to Military Review Boards and Board for Correction of Military/Naval Records Considering Requests by Veterans for Modifications of their Discharge Due to Mental Health Conditions, Sexual Assault or Trauma) * Stars and Stripes news article, "Pentagon Expands Policy to Upgrade Vets' Bad Paper Discharges," 29 August 2017 * Board of Veterans Appeals (BVA) Decision, 8 November 2018 * BVA Appeals Order, Rating Decision, 13 March 2019 * Army Review Boards Agency letter, 27 March 2019 * Congressional correspondence, 24 February 2020 and 6 March 2020 * ABCMR Docket Number Ar20270016762, 21 December 2020 * Congressional correspondence, 24 June 2021 * Veterans Service Organization email, 13 September 2021 * Congressional correspondence, 17 November 2021 * Military service webpage, "More Vets Can Apply of Review of 'Bad Paper' Discharges," 28 November 2021 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Dockets Number: * on 8 January 1997 * on 28 January 1998 * on 19 August 1999 (also designated as * on 21 December 2020. 2. The applicant has provided new evidence in the form of VA Rating Decisions, a BVA Appeals Order, Congressional correspondence, (webpage) news report titled 'Pentagon: More Vets Can Apply for Review of 'Bad Paper' Discharges,' and an (Organization) Institute International and Public Affairs paper titled 'Costs of War,' which warrant Board consideration at this time. 3. The applicant states, in effect: a. He is a male and is alive. Certain documents provided to him show his gender as female and pregnant. b. He was diagnosed with post-traumatic stress disorder (PTSD) and cardiac issues during his active service. c. He was deprived of due process caused by wrongful denial of his request for a medical evaluation board, a hearing, and physical evaluation board. d. His separation code "JGA" reflects he cannot or will not adapt socially or emotionally to military life. e. He was granted disability benefits from the VA for PTSD, heart disease, and hypertension. f. His supporting materials include news stories of sweeping policy changes in the DoD allowing reviews of discharges such as his, for Veterans with a diagnosis of PTSD, TBI, or MST. 4. The applicant provides: a. An SF 600, 26 May 1992, showing treatment for a heart condition, which was previously considered by the Board. b. Two VA rating decisions, 25 March 2013 and 4 April 2013, showing disability benefits were granted for hypertensive heart disease, including angina, cardiomegaly and left-ventricular hypertrophy. c. An (Organization) Institute, (University), paper outlining a DoD memorandum in which discharges would be evaluated for upgrade based upon a Veterans diagnosis of PTSD and MST. d. The Office of the Undersecretary of Defense, memorandum, issued on 25 August 2017, also known as the Kurta Memorandum, which provided clarifying guidance for reviewing Veterans' discharges due to PTSD, TBI, MST and other trauma. e. A (Newspaper) website story report about the Pentagon policy change to policy for reviewing discharges of former Servicemembers. f. A BVA decision letter, 8 November 2018, outlining the change to benefits based on individual unemployability. g. A BVA remand order, 8 November 2018, showing the applicant was granted service-connected disability benefits for a fracture to the left eye orbit in 1992, a heart condition in 1993, and PTSD in 1995. h. A VA Rating Decision, 13 March 2019, increasing his disability benefits because of individual unemployability. i. A letter from ARBA, 27 March 2019, in response to his inquiry into the status of his application in 2017. j. Congressional correspondence from 24 February 2020 and 6 March 2020. k. ABCMR Docket number AR20170016762, 21 December 2020, in which his request for reconsideration based on PTSD and VA medical disability benefits was denied. l. Congressional correspondence, 17 November 2021, in response to his inquiry into the status of his application and decision in 2021. m. A (Website) news story, 28 November 2021, reporting a change in DoD policy to consider Veterans' applications for discharge upgrades beyond the 15-year statute based on issues of MST, TBI, and PTSD. 5. It appears the applicant received documents from a FOIA response containing copies of some records from another service member's file, with a similar first and last name, but different middle name. These records will not be further considered or discussed in this record of proceedings. 6. A review of the applicant's service records shows: a. On 28 August 1991, the applicant enlisted in the New York Army National Guard (NYARNG) for a period of 8 years. In connection with this enlistment, he: * provided a medical history noting non-disqualifying prior service conditions and he underwent an enlistment medical examination and was found qualified for enlistment * understood he was required to attend Basic Combat Training, and complete Advanced Individual Training in the military occupational specialty 63B (Light Wheeled Mechanic) b. Orders issued by NYARNG show he was ordered to initial active duty for training with a report date of 7 January 1992. c. His available medical records show treatment for a: * skin condition on 13 February 1992 * visual blurriness on 30 March 1992 and 2 April 1992 * headaches on 6 April 1992 * visual injury on 9 April 1992 and 13 April 1992 * hairline fracture on 14 April 1992 * eye injury disposition on 30 April 1992 * dizziness and sinus condition on 3 May 1992 * abrasion on 4 May 1992 * wheezing on 11 May 1992 * vision medication causal to chest pain on 20 May 1992 and 21 May 1992 * EKG on 26 May 1992 * Visual issue on 26 May 1992 to 31 May 1992 * Shoulder pain on 6 June 1992 d. A DA Form 4856 (Counseling Form), 9 June 1992, shows he was counseled for academic failure in MOS 62B (should show 63B or light wheeled vehicle mechanic). The senior enlisted liaison, U.S. Army Training and Doctrine Command (TRADOC), Fort Leonard Wood, considered him for reclassification due not meeting his contract MOS requirements. The applicant stated he wanted to return to his home. The liaison, TRADOC recommended he be considered for entry level status (ELS) separation due to his lack of desire and motivation required to become a productive Soldier. e. On 11 June 1992, his company commander counseled him for failing his MOS training course for the third time and recommended his separation under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 11 ELS. f. On 19 June 1992, the applicant's Company Commander, Company D, 87th Engineer Battalion, 1st Engineer Brigade, notified him he was initiating action to separate him for academic failure in the 63B MOS training course, and notified him of his rights. He understood he had a right to consult with consulting counsel, he had the right to submit a written statement in his own behalf, and he had a right to obtain copies of the documents that would be sent to the separation authority supporting the proposed separation. g. On 19 June 1992, the Company Commander, Company D, 87th Engineer Battalion, 1st Engineer Brigade, recommended he be released from the Army under the provisions of AR 635-200, chapter 11 (Entry Level Performance and Conduct), for failing the 63B MOS training course three times. His commander further noted he had been counseled and he had received a rehabilitative transfer prior to this notification h. On 22 June 1992, the applicant responded in writing to his company commander's separation notification, electing to consult with consulting attorney and indicating he would submit a written statement in his own behalf. The applicant's written statement is not contained in the available records. i. On 28 June 1992, he gave a report of medical history and he underwent a separation medical examination. His report of medical history noted eye trouble, shortness of breath, pain or pressure in his chest, heart trouble, and that he had undergone vision treatment with surgery. The examining physician indicated he was provided a blood pressure hand-out sheet and discussed methods for controlling his blood pressure. The examining physician indicated he was qualified for separation. j. On 29 June 1992, he underwent a mental status evaluation for the purpose of a separation evaluation. A DA Form 3822-R shows the Chief Psychiatrist, Community Mental Health Service, Womack Army Medical Center, Fort Leonard Wood, shows he was evaluated under the provisions of Army Regulation 635-200, Chapter 11. The report states: (1) He had normal behavior and a fully oriented level of alertness with an unremarkable mood or affect; he had a clear thinking process with normal content and good memory. (2) In the examiner's opinion, he had the mental capacity to understand and participate in the proceedings, he was mentally responsible, and he met the retention requirements of Army Regulation 40-501, Chapter 3. (3) There was no evidence of psychiatric condition which would warrant disposition through medical channels. He was psychiatrically cleared for any administrative action deemed appropriate by his command. k. On 1 July 1992, the separation authority approved his discharge under the provisions of AR 635-200, chapter 11 with issuance of an ELS and a service characterization of uncharacterized. l. On 6 July 1992, U.S. Engineer Center and Fort Leonard Wood issued orders releasing him from active duty training and discharging him for the Reserve of the Army, and returning him to control of 269th Transportation Company, NYARNG. m. On 7 July 1992, he was discharged from active duty service. His DD Form 214 shows he was released from active duty training, discharged from the Reserve of the Army, and returned to control of the ARNG. It shows he completed 6 months and 1 day of net active service, he was not awarded an MOS, and he completed no foreign service. It shows in item 24 (Character of Service), honorable service; however, this entry is an error and should show uncharacterized service. It further shows in: * item 25 (Separation Authority) – AR 635-200, paragraph 11-3a * item 26 (Separation Code) – JGA * item 28 (Narrative Reason for Separation) – Entry Level Status n. Orders issued by the Office of the Adjutant General, NYARNG, 24 July 1992, show he was discharged from the NYARNG on 7 July 1992 with uncharacterized service. o. His NGB Form 22, which was issued on 7 July 1992 shows uncharacterized service with no completion of military education. p. On 8 January 1997 and in, the ABCMR denied his application for a change of the narrative reason to physical disability. The docket notes the ARBA Medical Advisor, provided a medical advisory opinion, 3 January 1997, which was considered with its decision. q. On 28 January 1998, and in, the ABCMR denied his request for reconsideration of his original application that his records show he was separated for the service for medical reasons. This docket notes the ARBA Medical Advisor was again consulted to provide a medical advisory opinion, 22 January 1998, which was also included with its reconsideration. r. On 19 August 1999, and in the ABCMR denied his request for reconsideration of his application based on new medical evidence he provided from the period of his active service as well as VA rating decisions and medical notes produced following his active duty service. The Board determined he failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice. s. On 21 December 2020, and in docket the ABCMR denied his request for reconsideration of a change to the narrative reason for his separation to reflect a medical discharge and a change to his separation code to the appropriate designation. 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 the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is again applying to the ABCMR requesting, in essence, a referral to the Disability Evaluation System. He states: “I am requesting relief and that my military retirement due to PT.S.D. & Cardiac Issues be granted.” b. The Record of Proceedings and previous denials detail the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 7 January 1992 and was discharged on 7 July 1992 under provisions provided in paragraph 11-3a of AR 635-200, Personnel Separations – Enlisted Personnel (17 September 1990), for falling below entry level performance and conduct standards. c. This request was previously denied in full four times: 8 January 1997, 28 January 1998, 19 August 1999; and 21 December 2020. Rather than repeat their findings here, the board is referred to the record of proceedings and medical advisory opinions for those cases. This review will concentrate on the new evidence submitted by the applicant. d. The applicant included the Kurta memorandum in his case stating it is applicable to his situation. The Liberal Consideration Policies outlined in the Secretary Hagel and Undersecretary Kurta memorandums address a former Service Member’s request to modify their discharge based on a pre-discharge mental health condition and do not apply to disability processing or compensation. e. A 26 May 1992 medical document shows the applicant to have returned from conversant leave following “eye surgery.” He was given a temporary profile to cover his physical deconditioning and a renewal of his medication for hypertension. f. VA documentation shows the applicant received a VA service-connected disability rating of 10% for hypertension upon discharge from the Army. the applicant has received a total disability rating based on individual unemployability (TDIU) effective 29 December 1993. g. No additional medical evidence was submitted with the application nor with the request for reconsideration. h. There continues to be is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, 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. i. Review of his records in JLV continues to show he has been awarded multiple VA service-connected disability ratings, including awards for PTSD and hypertensive heart disease. However, the DES compensates an individual only for service incurred 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. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. j. It is the opinion of the ARBA Medical Advisor that a referral of his case to the Disability Evaluation System remains unwarranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board note that there continues to be is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, 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. Although he may have been awarded multiple VA service-connected disability ratings, including awards for PTSD and hypertensive heart disease, the military’s disability system compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The VA has the role and 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. The Board determined that a referral of his case to the Disability Evaluation System remains unwarranted. 2. The applicant was discharged from active duty service due to entry level status. His service should be uncharacterized since he did not complete training, was not awarded an MOS, and his separation began during initial entry training. He was also properly assigned the appropriate separation code of JGA which is assigned to enlisted Soldiers separated under chapter 11 of AR 635-200 for Entry Level Status. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Dockets Number on 8 January 1997, on 28 January 1998, on 19 August 1999 (also designated as and in on 21 December 2020. 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 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge) states that an honorable discharge is a separation with honor. Issuance of an Honorable Discharge Certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Paragraph 11-3a. This policy applies to Soldiers who are in entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty or individual active duty training or no more than 90 days of phase II under a split or alternate training option. d. An entry level separation (uncharacterized) is used for separation under these proceedings. Entry-level status is defined as the first 180 days of continuous service. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel and the Soldier has less than 181 days of continuous active military service, has completed Initial Entry Training, and has been awarded an MOS. 3. Army Regulation 40-501 (Medical Service Standards of Medical Fitness) states that individuals evaluated under medical fitness standards contained in this regulation will be reported as indicated: a. Medically acceptable for all individuals who meet the medical fitness standards established for the particular purpose for which examined. b. Medically unacceptable by reason of medical unfitness all individuals who possess any one or more of the medical conditions or physical defects listed in this regulation as a cause for rejection for the specific purpose for which examined. 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System (DES) 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 or her office, grade, rank, or rating. a. Paragraph 3-2 (Referral) states referral for Military Occupational Specialty Administrative Review (MAR2) is required in the following circumstances when the Soldier is issued a DA Form 3349 (Physical Profile) with a P3/P4 in at least one of the profile serial factors for medical conditions that meet the medical retention standards of Army Regulation 40-501. Any DA Form 3349 generated for a USAR Soldier in a drilling troop program unit or Active Guard Reserve status must be validated by the USASR command’s medical management center before their referral into MAR2. b. Paragraph 4-7 (Medical Evaluation Board (MEB)) states an MEB is convened to determine whether a Soldier’s medical conditions meet medical retention standards per Army Regulation 40-501. With the exception of cases referred by MAR2, an MEB may determine that a Soldier’s conditions meet medical retention standards and recommend the Soldier be returned to duty. 5. Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 states gives 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 the individuals. Soldiers pending separation in accordance with provisions of Army Regulation 635-200 or Army Regulation 600-8-24 authorizing separation under other than honorable conditions who do not meet medical retention standards will be referred to an MEB. In the case of enlisted soldiers, the physical disability processing and the administrative separation processing will be conducted in accordance with the provisions of Army Regulation 635-200 and Army Regulation 635-40. 6. Army Regulation 635-5-1 (Personnel Separations – Separation Program Designators), in effect at the time, listed the specific authorities, regulatory, statutory, or other directive, and reasons for separation from active duty, active duty for training, or full time training duty. The separation program designator "JGA" corresponded to "Entry Level Performance and Conduct," and the authority, Army Regulation 635-200, Chapter 11. 7. 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. 8. 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. 9. 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. 10. 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) AR20220002243 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1