IN THE CASE OF: BOARD DATE: 13 December 2022 DOCKET NUMBER: AR20220003425 APPLICANT REQUESTS: reconsideration of his previous request for a medical retirement. Upgrade of his Army Commendation Medal (ARCOM) to the Silver Star or Bronze Star Medal. Also, a personal appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Police report 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 AR20190007599 on 23 March 2021. 2. The applicant states during his discharge process, he was not given a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) and was not aware that he could request the process. He had a separation physical that resulted in a Veterans Affairs (VA) rating of 70% with a special monthly compensation of SMK (Special Monthly Compensation-K) due to post-traumatic stress disorder (PTSD) and Traumatic Brain Injury (TBI). His current VA rating is 100%. He is also a Purple Heart Recipient. The TBI was also related to the combatives training and his certification as a combatives trainer. His discharge needs to be reviewed for modification to a medical retirement. a. At the time that he was going through the separation and out processing, his chain of command advised against being truthful with the medical examiners. He was advised that if he claimed PTSD or showed any visible symptoms of PTSD or TBI issues his chain of command would make sure that Child and Family Services would be advised, and he would lose custody of his daughter during the divorce. He was also not given the option to pursue a medical evaluation through a MEB, PEB or Fitness for Duty Board as that would reflect negatively on his chain of command and they again threatened him that if he did not complete the separation process as they were forcing him to do, they would ensure that he would never have custody of his daughter. Their threats have impacted his life daily since his time in the Army. b. In a self-authored statement he explains his injury in Iraq in detail. He details his injuries that he is currently still dealing with. He returned from Iraq early due to his spouse at the time having mental issues. He was subsequently awarded a Purple Heart for his injuries. Even though he received a Purple Heart for the injuries he received and their lasting effects, he was never provided an accurate follow-on examination and was not placed on a physical or medical profile as that would have impacted the readiness of his unit and would have reflected on his commanders. He was advised that instead he needed to lie and say that he was ok, and it would be in his best interest to not be truthful in the out-processing medical review so that he could return to California to take care of his daughter. He also believes his ARCOM should be upgraded to a Silver or Bronze Star (The applicant’s entire letter is available in documents for the Board’s review). 3. Regrading the applicant’s request to upgrade his Army Commendation Medal to a Bronze Star Medal or a Silver Star, the applicant’s request is premature. a. Army Regulation 600-8-22 (Military Awards) prescribes Department of the Army policy, criteria, and administrative instructions concerning individual and unit military awards. Paragraph 1-14 of this regulation states, except for award recommendations submitted in accordance with the provisions of Section 1130, Title 10, United States Code (10 USC 1130), which is outlined below, each recommendation for an award of a military decoration must be entered administratively into military channels within 2 years of the act, achievement, or service to be honored, with the exception of the Medal of Honor, Distinguished Service Cross, and Distinguished Service Medal. An award recommendation will be considered to have been submitted into military channels when it has been signed by the initiating officer and endorsed by a higher official in the chain of command. However, pursuant to 10 USC 1130, a Member of Congress can request consideration of a proposal for the award or presentation of decoration (or the upgrading of a decoration), either for an individual or unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy. Based upon such review, the Secretary of the Army will make a determination as to the merit of approving the award or presentation of the decoration and other determinations necessary to comply with congressional reporting requirements under 10 USC 1130. b. 10 USC 1130 allows the Service Secretary concerned to review a proposal for the award of, or upgrading of, a decoration that is otherwise precluded from consideration by limitations established by law or policy. In order to request an award under Title 10 USC 1130, you must submit a DA Form 638 (Recommendation for Award), a copy of which is enclosed. c. The DA Form 638 should clearly identify your unit, the period of assignment, and the award being recommended. A narrative of the actions or period for which you are requesting recognition must accompany the DA Form 638. In addition, your award request should be supported by sworn affidavits, eyewitness statements, certificates and related documents. Corroborating evidence is best provided by commanders, leaders, and fellow Soldiers who had personal (i.e., eyewitness) knowledge of the circumstances and events relative to the request. d. 10 USC 1130 also requires that a request of this nature be referred to the Service Secretary from a Member of Congress. Therefore, you must submit your request through a Member of Congress who will send it to the United States Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122. The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor. e. Therefore, the issue of upgrading his award will not be discussed further in this Record of Proceedings. 4. The applicant enlisted in the Regular Army on 6 March 2000. He held military occupational specialty 13S (Field Artillery Surveyor). He was promoted to E-4 on 11 March 2005. He reenlisted on 13 April 2005. 5. He served in Iraq from 3 September 2006 to 3 September 2007. 6. The applicant provided a police report from the city of which shows on 13 May 2007, police were called to his residence in which he called to report domestic violence against his spouse at the time. His wife was arrested for domestic violence and child endangerment. 7. On 14 November 2007, the applicant’s immediate commander notified the applicant of initiation to separate him under the provisions (UP) of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-8, due to parenthood. The commander stated the reason for the proposed action was the applicant did not have a valid family care plan. He recommended the applicant receive an honorable discharge. He advised the applicant that the separation authority was not bound by his recommendation as to the characterization of service and of his rights. 8. On 20 November 2007, after consulting with counsel, the applicant acknowledged the basis of the contemplated action and the rights available to him. He waived his rights and elected to submit a statement in his own behalf wherein he stated: * he was currently involved in a custody battle; at the moment, he had legal and physical custody of his daughter, but he had another court date pending in December * he requested the discharge paperwork be processed as quickly as possible so he could deal with the family issues he was facing 9. On 2 and 5 December 2007, his chain of command recommended approval of his discharge and issuance of an honorable discharge. 10. On 11 December 2007, the separation authority approved the applicant’s discharge and directed the issuance of an Honorable Discharge Certificate. 11. Orders Number 361-0677, issued by Headquarters, U.S. Army Garrison, and Fort Sill, OK on 27 December 2007, reassigned him for separation processing, with a report date of 4 January 2008, with entitlement to separation pay. 12. He was honorably discharged accordingly on 4 January 2008. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with paragraph 5-8 of AR 635-200, due to parenthood (Separation Code JDG, Reentry Code 3). He completed 2 years, 8 months, and 22 days of net active service this period. It also shows he completed 4 years of total prior active service and 1 year and 1 day of foreign service. He received separation pay in the amount of $8,498.40. He was awarded or authorized: * Army Good Conduct Medal * National Defense Service Medal (2d Award) * Global War on Terrorism Service Medal * Iraq Campaign Medal * Army Service Ribbon * Overseas Service Ribbon * Combat Infantryman Badge * Combat Action Badge 13. A DD Form 215 (Correction to DD Form 214) was issued on 7 March 2019, which shows: a. Item 13 (Decorations, Medal, Badges, Citations and Campaign Ribbons Awarded or Authorized) delete Iraq Campaign Medal and Combat Infantryman Badge; and add Purple Heart, Army Commendation Medal, Army Achievement Medal, and Iraq Campaign Medal with 2 bronze service stars. b. Item 14 (Military Education) add Combatives trainer course level 1, 1 week, 2005, Combatives trainer course Level 2, 2 weeks 2005, and Combatives trainer course level 3, 4 weeks 2006. 14. There is no available evidence indicating he was issued a permanent profile or was diagnosed with a condition that did not meet medical fitness standards in accordance with AR 40-501 (Standards of Medical Fitness) during his period of service. 15. On 23 March 2021, in ABCMR Docket Number AR20190007599, the Board considered his application but determined that after reviewing the application and all supporting documents, that relief was not warranted. The Board denied his request. 16. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 17. Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 18. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the DVA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings 19. 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 again applying to the ABCMR requesting, in essence, a referral to the Disability Evaluation System (DES). He states: “At the time that I was going through the separation and out-processing, my chain of command advised against being truthful with the medical examiners. I was advised that if I claimed PTSD or showed any visible symptoms of PTSD or TBI issues my chain of command would make sure that Child and Family Services would be advised and I would lose custody of my daughter during the divorce... During my discharge process, I was not given a Medical or Physical Evaluation Board and was not aware that I could request the process. I had a separation physical that resulted in a VA Rating of 70% with a special monthly compensation of SMC {special monthly compensation} due to PTSD and TBI. My current VA is 100%.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 for the period of Service under consideration shows he reentered the regular Army on 13 April 2005 and received an honorable discharge on 4 January 2008 under provisions provided in paragraph 5-8 of AR 635- 200, Active Duty Enlisted Administrative Separations (6 June 2005): Involuntary separation due to parenthood. c. This request was previously denied in full on 23 March 2021 (AR20190007599). Rather than repeat their findings here, the board is referred to the record of proceedings and medical advisory opinion for that case. This review will concentrate on the new evidence submitted by the applicant. d. The only new evidence submitted with the applicant is a statement from the applicant and a police report. The statement outlines this traumatic brain injury he sustained while in Iraq and was discussed in the previous medical advisory opinion. e. The police report form from 13 May 2007 shows he had reported his wife to the police and she was arrested for domestic violence and child endangerment. f. Paragraph 5-8a of AR 635-200: a. Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities. (See AR 600–20, chapter 5, concerning Soldiers’ responsibilities for care of family members as related to military responsibilities.) Specific reasons for separation because of parenthood include— * Inability to perform prescribed duties satisfactorily. * Repeated absenteeism. * Repeated tardiness. * Inability to participate in field training exercises or perform special duties such as CQ and staff duty noncommissioned officer (NCO) * Non-availability for worldwide assignment or deployment according to the needs of the Army. g. On 14 November 2007, his company commander initiated action to separate the applicant under paragraph 5-8 of AR 635-200 for failure to have a valid family care plan. The applicant acknowledged the action the same day. On 20 November 2007, the applicant stated he had been advised by counsel and: “I do not wish to participate in any administrative separation board, and I waive consideration of my case before the separation board ...I am currently involved in a custody battle. At the moment, I have legal and physical custody of my daughter, but I do have another court date pending in December. I respectfully request that you please process this paperwork as quickly as possible so that I can deal with the family issues I am facing” h. There is insufficient evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge i. Paragraph E3.P3.5.1 of Department of Defense Instruction 1332.38 Subject: Physical Disability Evaluation (14 November 1996) states: “The DES compensates disabilities when they cause or contribute to career termination.” j. This concept from the DES’s governing document is incorporated into paragraph 3- 2b(1) of AR 635–40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006) which states: “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.” k. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings, including ratings for PTSD, migraine headaches, and traumatic brain 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. l. It is the opinion of the ARBA Medical Advisor that a referral of his case to the DES remains unwarranted. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. 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 noted that the applicant was honorably discharged on 4 January 2008 due to parenthood (Separation Code JDG, RE Code 3). The Board reviewed the medical advisor’s finding that the applicant has been awarded multiple VA service-connected disability ratings, including ratings for PTSD, migraine headaches, and traumatic brain disease. However, the military disability system (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 VA compensates 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. Based on the preponderance of the evidence, the Board determined that referral to the DES remains unwarranted. 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 AR20190007599 on 23 March 2021. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation (AR) 15-185 (ABCMR) 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, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 5-8 of the regulation stated a Soldier would be considered for an involuntary separation when parental obligations interfered with fulfillment of military responsibilities. Specific reasons for separation because of parenthood included inability to perform prescribed duties satisfactorily, repeated absenteeism, late for work, inability to participate in field training exercises or perform special duties, and non-availability for worldwide assignment or deployment according to the needs of the Army. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. Only the unfitting conditions or defects and those which contributed to unfitness would be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Soldiers who sustained or aggravated physically-unfitting disabilities must meet the following line-of duty criteria to be eligible to receive retirement and severance pay benefits. The regulation stated: a. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it was necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform. b. The VA Schedule for Rating Disabilities (VASRD) was primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Once a Soldier was determined to be physically unfit for further military service, percentage ratings were applied to the unfitting condition(s) from the VASRD. Those percentages were applied based on the severity of the condition at the time of separation. 4. AR 40-501 (Standards of Medical Fitness), in effect at the time, governed medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness was made, the Physical Evaluation Board rated all disabilities using the VASRD. Ratings could range from 0% to 100%, rising in increments of 10%. 5. 10 U.S. Code § 1130 - Consideration of proposals for decorations not previously submitted in timely fashion: procedures for review. Upon request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation. Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration. 6. 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) AR20220003425 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1