IN THE CASE OF: BOARD DATE: 17 February 2023 DOCKET NUMBER: AR20220004059 APPLICANT REQUESTS: * Change his uncharacterized character of service to honorable * In effect, revise his discharge to reflect a medical separation * Permission to appear personally before the Board, via video/telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum * Two DA Forms 4856 (Developmental Counseling Form) * Soldier's Statement and Soldier's Questionnaire FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, after enlisting into the U.S. Army Reserve (USAR), they sent him to Fort Jackson for basic combat training (BCT); while there; he dislocated his shoulder during transportation to a training site. a. The applicant was recovering from his injury when the Red Cross told him his mother suffered heart failure, and doctors were not sure if she was going to survive, so his BCT leadership allowed him to return home on emergency leave. b. On the night he was to return from emergency leave, five men jumped him and beat him in the head with a pipe or crowbar; he lost consciousness and doctors subsequently determined he sustained a concussion and spinal damage, along with some other injuries. The doctors sent word to his unit advising that the applicant should not travel; however, against his doctors' orders and after his chain of command threatened absence without leave (AWOL) charges, the applicant returned to Fort Jackson. c. The applicant's BCT leadership sent him for a psychological evaluation, and the evaluator recommended the applicant's chain of command allow him to recover before resuming training. "With time not on my side, my drill sargents (sic) and commanding officer decided to hold me back for recovery, without the proper care that I needed, they convinced me that my best option was to be discharged. I was in an extremely voulnerable (sic) state of mind and did not want to be discharged and wanted to continue on with my military career. They mislead me into saying things and signing documents with the indication that I would be able to come back and continue." 3. The applicant provides documents from his official military personnel file that include his description of the attack while on emergency leave, and his unit's subsequent actions to initiate his separation, under the provisions of chapter 11 (Entry Level Performance and Conduct), Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations). 4. The applicant's service records show: a. On 3 February 2005, the applicant enlisted into the USAR for 8 years; at the time of his enlistment, he held the rank/grade of private first class (PFC)/E-3. On 27 April 2005, the applicant entered initial active duty for training and orders assigned him to Fort Jackson for initial entry training (IET); he arrived at his BCT unit, on or about 29 April 2005. b. As part of his BCT in-processing, the applicant completed a "Personal Data" document, wherein he disclosed, "I'm a very active person until recently; now I have a little situation with my left shoulder that causes me to be cautious, (because), if I dislocate it again, I won't be able to use it again (physically)." c. Between 11 and 19 May 2005, the applicant's drill sergeant counseled him four times for missing required training; in each case, the drill sergeant noted applicant had been unable to participate in training due to his physical condition and profile, but that the applicant would be required to make up the training prior to graduation. d. On 25 May 2005, the applicant departed on emergency leave and returned on 21 June 2005. On 29 June 2005, the applicant saw a counselor at the Community Mental Health Service (CMHS), and based on that visit, the counselor prepared a Report of Mental Status Evaluation (DA Form 3822-R) and a memorandum addressed to the applicant's BCT commander. (1) The DA Form 3822-R indicated the applicant's behavior was tense, and his mood and affect were depressed, irritable, and anxious. Under "Remarks," the counselor noted the applicant had self-referred himself, and the counselor offered the following AXIS I diagnosis: "Adjustment D/O w/ Mixed Anxiety and Depressed Mood r/o Acute Stress D/O." (2) The counselor recommended the applicant's removal from training and further advocated against the applicant's use of weapons/live ammunition. (3) In additional remarks, the counselor stated, "[Applicant] is experiencing symptoms of anxiety and depression related to an inability to adjust to the military training environment. Additionally, he recently experienced significant physical trauma that continues to impact him emotionally and negatively contributes to his distress. He reports persistent feelings of hopelessness, sleep disturbances, guilt, poor appetite, increased irritability, and thoughts about hurting or killing himself. He has no prior history of suicidal ideation. He has contracted for safety with this office. He has no desire to remain in the Army. Recommend an expeditious Chapter 11 Discharge for the good of the service. Place on buddy watch to ensure his safety until time of discharge." (4) In his separate memorandum to the applicant's BCT commander, the counselor wrote, "Request [applicant] receive an expedited discharge from the Army. His current level of emotional distress is worsening as a direct result of the military training environment. It is determined that an expedited discharge is in the best interest of the Army and the Soldier due to his condition and potential for harm to self and/or others." e. On 30 June 2005, the applicant's drill sergeant counseled the applicant on a DA Form 4856; the drill sergeant noted the applicant had recently been on emergency leave and, shortly after his return; the applicant had made an appointment with CMHS. The CMHS counselor had requested the applicant receive an expedited discharge due to the applicant's current level of emotional distress; as a result, the drill sergeant intended to recommend the applicant's separation. f. On 12 July 2005, the applicant prepared a written statement, wherein he affirmed going on emergency leave, and, on the night he was to return, five men jumped him and struck him in the head. As a result of the attack, the applicant suffered a concussion, damage to his spine, and other injuries; he added, "As of now, I am currently depressed. I barely eat or sleep, I have headaches & back aches due to this injury. I also have brain damage, and this is all due to the injury I had." In a "Soldier's Questionnaire," the applicant reported that every day in BCT was bringing him further down, and his brain damage and spinal injuries made him medically unable to perform his duties. g. On 13 July 2005, both the applicant's senior drill sergeant and his company commander gave the applicant separation counseling per chapter 11, AR 635-200; on a DA Forms 4856, they advised the applicant of the following: (1) The senior drill sergeant and company commander noted that, shortly after arriving in BCT, the applicant had incurred an arm injury that precluded him from participating in training. While on emergency leave, the applicant sustained a serious attack, and, on his return, military doctors evaluated the applicant and determined the applicant's earlier injury and the subsequent attack had left him with conditions that would not let the applicant adapt emotionally or physically to the military environment. The doctors recommended the applicant's separation, and both the senior drill sergeant and company commander agreed. (2) The senior drill sergeant and company commander went on to state they were providing the applicant his formal counseling, pursuant to AR 635-200, paragraph 1-16 (Counseling and Rehabilitative Requirements), and the counseling forms listed the various characters of service available, to include "uncharacterized (entry-level status separations or void enlistments)," and described the negative effects of having a less than honorable character of service. h. On 18 July 2005, the USAR and Army National Guard Liaison Noncommissioned Officer (NCO) counseled the applicant about the pending chapter 11, AR 635-200 separation action. The NCO affirmed the applicant understood that the discharge would result in a loss of medical and educational benefits and was aware of the probable type of discharge; character of service; and reentry probability, with or without a waiver. The liaison NCO added the applicant needed to report to the military hospital to initiate a line-of-duty action based on the injuries incurred during training. i. On 11 August 2005, the applicant's BCT commander advised him, via memorandum, that he was initiating separation action against the applicant, under the provisions of chapter 11, AR 635-200. (1) The commander stated his reasons: " When you first arrived at BCT, you had an arm injury, which prevented you from completing the required training. Based on your evaluation by MAJ CMHS, you are experiencing symptoms of anxiety and depression related to an inability to adjust to the military training environment. Additionally, you recently experienced significant physical trauma that continues to impact you emotionally and negatively contributes to your distress. You report persistent feelings of hopelessness, sleep disturbances, guilt, poor appetite, increased irritability, and thoughts about hurting or killing yourself. You have been diagnosed with an adjustment disorder with mixed anxiety and depressed mood. You also have a low to moderate potential for self-harm. MAJ determined that you will not respond to command's efforts at rehabilitation nor to any treatment methods currently available in any military mental health facility. She recommends expeditious discharge, UP (under the provisions of) Chapter 11." (2) The commander indicated he was recommending the applicant receive an "uncharacterized entry-level separation," but the final decision rested with the separation authority. j. On 11 August 2005, the applicant waived his right to consulting counsel, but acknowledged being advised of the basis of his pending separation action, and that he understood his rights and the effect of waiving those rights. k. On 17 August 2005, the separation authority approved the commander's separation recommendation and directed the applicant's discharge with an uncharacterized character of service; on 25 August 2005, orders discharged the applicant accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 months and 29 days of net active-duty service. 5. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 6. During the applicant's era of service, commanders could, per chapter 11, AR 635-200, initiate separation action against entry-level Soldiers who demonstrated they were unqualified for retention by not adapting socially or emotionally to military life, not meeting minimum standards for the successful completion of training, and/or not responding to counseling (as recorded on DA Form 4856). a. Paragraph 11-3 (Policy) stated chapter 11 applied to Regular Army Soldiers who had voluntarily enlisted, were in an entry-level status, and had not completed more than 180 days of continuous active-duty service, or the first 180 days of continuous active duty following a break of more than 92 days of active military service. b. Paragraph 11-4 (Counseling and Rehabilitation Requirements) stated it was essential to fulfill the regulation's counseling and rehabilitation requirements because military service was a calling different from any civilian occupation; commanders should not separate a Soldier, using entry level performance and conduct as the sole basis, unless efforts at rehabilitation had been made. c. Effective 1 October 1982, a revision of AR 635-200 mandated the issuance of uncharacterized characters of service to Soldiers separated while in an entry-level status; for USAR Soldiers, entry-level status began upon their enlistment and continued until they had either completed 180 days of continuous active-duty service. The regulation further stated the Secretary of the Army could issue an honorable character of service, on a case-by-case basis, when clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. 7. AR 40-501, in effect at the time, prescribed policies and procedures for identifying and referring for Disability Evaluation System (DES) processing those Soldiers who failed the medical retention standards. Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) listed the various disqualifying medical conditions and/or physical defects requiring DES referral. a. Paragraph 2-16 (Head). The regulation listed a cerebral concussion as a cause for rejecting a prospective enlistee until a period of 3 months had elapsed; chapter 3 of the regulation did not explicitly identify either concussion or traumatic brain injury as a reason for referral into DES. b. Paragraph 3-12 (Upper Extremities) identified specific forward elevation or abduction limitations of the shoulder and recurrent shoulder dislocations deemed surgically unrepairable as reasons to refer a Soldier into DES. c. Paragraph 3-36 (Adjustment Disorders). Situational maladjustments due to acute or chronic situational stress did not render an individual unfit because of physical disability but could be the basis for administrative separation if recurrent and causing interference with military duty. 8. AR 635-40, in effect at the time, prescribed policies and procedures for the Army's implementation of the Disability Evaluation System (DES). a. Federal law established the DES, and its stated objectives were to maintain effective and fit military organizations with maximum use of available manpower; provide benefits for eligible Soldiers whose service were terminated due to a service- connected disability; and to provide prompt disability processing while ensuring the Soldiers' rights and the interests of both the government and Soldiers' were protected. b. Paragraph 3-1 (Standards of Unfitness Because of Physical Disability). The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it was necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. c. Paragraph 3-3 (Conditions Existing Before Active Military Service). According to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or started before the individual entered military service. 9. The ABCMR does not grant requests for upgraded characters of service solely to make someone eligible for Veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition, his evidence and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 10. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests an upgrade in the characterization of his discharge from ‘Uncharacterized’ to ‘Honorable’ due to medical disability. He contends that TBI sustained while on leave contributed to the reason for his discharge. He also mentioned shoulder dislocation injury. b. The available facts and circumstances surrounding the applicant’s discharge from service are summarized in the ROP. Pertinent facts are as follows: The applicant enlisted in the Army Reserve 03Feb2005. He entered a period of active duty 27Apr2005 and was separated a little under four months later, on 25Aug2005. Military counseling notes annotated that the applicant arrived at basic training with an arm/shoulder injury that impacted physical training. Per Counseling notes, the injury resulted in him having to miss training (11May2005; 16May2005; 17May2005, 18May2005). The applicant indicated in his 2022 Application for Correction of Military Record, that he had sustained shoulder dislocation during training session while in route when they hit a dip in the road. He stated that he was seen at sick bay for the injury. He received notice of an urgent family matter and was granted emergency/convalescent leave 25May2005 until 21Jun2005 to attend to the matter. The applicant indicated in his 12Jul2005 Statement, that the night before returning, he was assaulted and struck with a pipe and he sustained a concussion, spinal injury (neck and back) and a few other injuries. c. Medical records and pertinent related while in service (1) 22Dec2004 Report of Medical Examination (for enlistment). The psychiatric examination was left blank as was the ‘S’ bock for PULHES. (2) From 01-07May2005 the applicant was seen at Moncrief-ACH for left shoulder dislocation and atypical chest pain. He initially presented on 01May (0/9 week of BCT) with pain due to left shoulder dislocation (confirmed by x-rays). The dislocation was treated, and physical therapy was consulted. He was placed on profile 01May to 06May. On 04May, he endorsed a history of recurrent chest pain off and on that was last evaluated 6 weeks prior. During this visit, he reported that he had experienced an episode of chest pain while doing push-ups which caused him to jerk and injure (dislocate) his left shoulder. The chest pain was intermittent for 3-4 years. He had been evaluated overseas 2 months prior by his doctor and released without limitations. By 05May2005, the shoulder and chest pain resolved, and their respective examinations were normal. The left shoulder pain did temporarily return after his profile was violated and he returned to PT too early; however, his shoulder did not dislocate again. He was placed on a “deadman’s profile” 07May to 16May2005. Of note, his past medical history was significant for a right shoulder dislocation when he was 3 years old. (3) 09May2005, he was seen for hyperventilating and fainting while voiding that day. (4) 14May2005, he reported shortness of breath at rest and with exercise for 2 weeks. He was placed on profile 14May to 18May2005. Asthma was ruled out with normal PFTs on 16May2005. During this visit, the shoulder exhibited full active ROM. Muscle strength was full (5/5). (5) 16May2005 Physical Therapy. He was able to do 10 push-ups. Previously he was unable to perform any. ROM: Flexion to 125 degrees (normal is to 180 degrees) and abduction to 110 degrees (normal is to 180 degrees); both were pain free to 90 degrees. His profile was continued 16May2005 to 01Jun2005. (6) 24Jun, 27Jun, 28Jun2005. The applicant was evaluated for Post-Concussion Syndrome after being hit on the back of the head by a crowbar 3 weeks prior. He had loss of consciousness at the time of the event. Current symptoms included headache, stuttering and diplopia. He also complained of pain in the upper and lower back. He was examined but the impression was “neurological findings were inconsistent/bizarre”. (7) 27Jun2005 head CT showed no fracture, bleed, or other acute changes. Sporadic sinus disease was noted. 06Jul2005 brain MRI was normal except incidental finding of sinus disease was again noted. (8) 27Jun2005 Ophthalmology Clinic. The applicant was seen for blurred vision and diplopia (double vision) since the assault. The specialist observed that the exam revealed many non-physiologic results. During this visit he disclosed having a lot of family issues and desired a BH appointment. (9) 29Jun2005 Report of Mental Status Evaluation. Eight days after returning from the emergency/convalescent leave, the applicant self-referred for BH evaluation, (completed by Social Work). The provider wrote that the applicant was experiencing anxiety and depression related to an inability to adjust to the military training environment. In addition, the recent and significant trauma was noted and was assessed to be adding to his emotional distress. He did report thoughts of self-harm and suicide ideation. He was observed to be tense, and with depressed, irritable, and anxious mood/affect. Of note, his thought process was clear, and thought content was normal. His memory was good. He was deemed to be mentally responsible and capable of understanding and participating in the administrative process. He was assessed to be at low to moderate risk of self- harm; therefore weapons were recommended to be restricted. It was further recommended that he should be accompanied by a buddy at all times; and he should be removed from training and expeditiously discharged from service under provisions of AR 635-200 chapter 11. Diagnoses: Adjustment Disorder with Mixed Anxiety and Depressed Mood; Rule Out Acute Stress Disorder; and Post- Concussion Syndrome. d. 19Jul2005 Chapter 11 Physical Exam. The physical completed on DD Form 2807-1 was not available for review; but the AHLTA note documented that he was released without limitations. e. Medical records after discharged from service (1) JLV search revealed that the applicant began being seen by VA providers in May 2022. A 28Apr2022 DBQ was reportedly completed but was not able to be located by this reviewer on the day of the JLV search. JLV search showed that the applicant was total combined service connected by the VA at 80% for the following disabilities: TBI at 40%, Migraine Headaches 30%, Degenerative Arthritis of the Spine 20%, Paralysis of Middle Radicular Nerves 20%; Paralysis of Middle Radicular Nerves 20%; Superficial Scars 10%, Lumbosacral or Cervical Strain 10%, and Facial Scars 0%. (2) 23Jun2022 Primary Care Outpatient Note. He reported experiencing the following since his TBI in 2005: Ongoing neck pain and headaches with worsening in the past 2-3 months; as well as speech stuttering with worsening over the past few years. The VA provider reviewed hospital records and the police report surrounding the 07Jun2005 assault which occurred while on leave off-base in a civilian setting in Michigan. The applicant, a victim of a car-jacking attempt was found unconscious, transported to a civilian hospital, and kept overnight. Alcohol abuse, PTSD and Depression screens were all negative. He had been working in logistics for the past 2 years and enjoyed his job. (3) 08Jul2022 TBI Consult. When considering the applicants complaints of recent worsening of TBI symptoms (as described above), the specialist stated there was very low suspicion that his TBI had progressed as TBI is generally not considered to be progressive. In addition, it was observed that the applicant had multiple comorbidities that likely contributed to his current symptoms (e.g., chronic pain/headaches/insomnia, presumed depression/anxiety) (4) Prior to the 08Jul2022 TBI Consult, the applicant had been service connected by the VA at 10% for TBI and 0% for Migraine Headaches. f. The applicant was discharged under provisions of AR 635-200 chapter 11, due to entry level performance and conduct. His time in service was 3 months 29 days. The applicant entered active service 27Apr2005. During the first 14 days in May, he was seen for the following: Recurrent atypical chest pain (suspected to be related to anxiety), left shoulder pain, hyperventilating, shortness of breath and syncope. All of these symptoms were present prior to the TBI, and all of these symptoms interfered with training (necessitated temporary profiling). The recurrent atypical chest pain was present prior to military service. On 09May2005, the applicant was diagnosed with Psychogenic Hyperventilation or Hyperventilation Syndrome. This is a diagnosis of exclusion—when cardiopulmonary causes (for example) were not found. There is also a high association with psychiatric comorbidities (especially with panic and anxiety disorders (UptoDate reference). In addition, he had been seen more than once for chest pain that did NOT have cardiopulmonary, gastrointestinal, musculoskeletal etc. origin and likely also had psychogenic origin. After the traumatic brain injury, he developed Post-Concussion Syndrome (headaches and eye complaints), neck and back pain. Moreover, his emotional distress worsened in the military training environment after the TBI, as assessed by the BH. The applicant was diagnosed with an acute adjustment disorder which was not a boardable BH condition. He was discharged due to symptoms related to this condition. It should be noted that PTSD was considered (listed as Rule Out Acute Stress Disorder), however, some key symptoms for example intrusion symptoms (flashbacks), and avoidance behaviors were absent. He again screened negative for PTSD in June 2022 (23Jun2022 Primary Care Outpatient Note). To date, available records do not show PTSD diagnosis. Of note, he has been diagnosed with Somatization Disorder (30Jan2023 Psychology Consult). g. The applicant was not discharged due to TBI, Migraine Headaches, Left Shoulder Dislocation, Neck Pain, Back pain etc. These conditions had not failed conservative treatment (had not met MRDP-medical retention determination point). The 19Jul2005 Chapter 11 Physical Exam indicated that he was released without limitations. Based on records available for review, there was insufficient evidence to support that the applicant had a boardable BH condition or medical condition which failed medical retention standards of AR 40-501 chapter 3 at the time of discharge. Therefore, referral for medical discharge processing is not warranted. The applicant was discharged for symptoms related to his inability to adjust to the military training environment, which was apparent prior to the assault, although the resultant TBI did temporarily cause worsening symptoms. Moreover, his recurrent atypical chest pain (already of 2-3 years duration) was suggestive of predisposition vulnerability prior to entry into service. Based on review of available records, in the ARBA Medical Reviewer’s opinion, if the applicant had not sustained the TBI, more likely than not, he still would have been discharged prior to the end of his term of service and likely prior to completing basic training. The applicant’s service was designated as ‘Uncharacterized’ due to length of service. Because the applicant did sustain the TBI which virtually ensured that he would not complete basic training, the Board may consider changing the characterization of discharge to ‘Honorable’ with narrative reason ‘Secretarial Authority’. ? 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 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, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding insufficient evidence to support that the applicant had a boardable behavioral health condition or medical condition which failed medical retention standards. The Board agreed that referral for medical discharge processing is not warranted. The applicant was discharged for symptoms related to his inability to adjust to the military training environment, which was apparent prior to the assault, although the resultant TBI did temporarily cause worsening symptoms. 2. The applicant did not complete his training, nor did he receive a military occupational specialty (MOS) he was discharged from active duty after completion of only 3 months and 29 days of net active-duty service. The Board determined the governing regulation provides that a separation will be described as an entry-level separation, with service uncharacterized, if the separation action is initiated while a Soldier is in entry-level status. An uncharacterized discharge is not derogatory; it is recorded when a Soldier has not completed more than 180 days of creditable continuous active duty prior to initiation of separation. It merely means the Soldier has not served on active duty long enough for his or her character of service to be rated as honorable or otherwise. Therefore, the Board denied relief. 2. 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 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 for correction of the records of the individual concerned. 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, section 1556 (Ex Parte Communications Prohibited) provides the Secretary of the Army shall ensure that an applicant seeking corrective action by 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. 3. AR 635-200, in effect at the time, prescribed policies and procedures for administrative enlisted separations. a. Under chapter 11, commanders could initiate separation action against entry- level Soldiers who demonstrated they were unqualified for retention by not adapting socially or emotionally to military life, not meeting minimum standards for the successful completion of training, and/or not responding to counseling (as recorded on DA Form 4856). (1) Paragraph 11-3 (Policy) stated chapter 11 applied to Regular Army Soldiers who had voluntarily enlisted, were in an entry-level status, and had not completed more than 180 days of continuous active duty service, or the first 180 days of continuous active duty following a break of more than 92 days of active military service. (2) Paragraph 11-4 (Counseling and Rehabilitation Requirements) stated it was essential to fulfill the regulation's counseling and rehabilitation requirements because military service was a calling different from any civilian occupation; commanders should not separate a Soldier, using entry level performance and conduct as the sole basis, unless efforts at rehabilitation had been made. b. Effective 1 October 1982, a revision of AR 635-200 mandated the issuance of uncharacterized characters of service to Soldiers separated while in an entry-level status; for USAR Soldiers, entry-level status began upon their enlistment and continued until they had either completed 180 days of continuous active-duty service. The regulation further stated the Secretary of the Army could issue an honorable character of service, on a case-by-case basis, when clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. 4. AR 40-501, in effect at the time, prescribed policies and procedures for identifying and referring for Disability Evaluation System (DES) processing those Soldiers who failed the medical retention standards. Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) listed the various disqualifying medical conditions and/or physical defects requiring DES referral. a. Paragraph 2-16 (Head). The regulation listed a cerebral concussion as a cause for rejecting a prospective enlistee until a period of 3 months had elapsed; chapter 3 of the regulation did not explicitly identify either concussion or traumatic brain injury as a reason for referral into DES. b. Paragraph 3-12 (Upper Extremities) identified specific forward elevation or abduction limitations of the shoulder and recurrent shoulder dislocations deemed surgically unrepairable as causes for referral into DES. c. Paragraph 3-36 (Adjustment Disorders). Situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability but may be the basis for administrative separation if recurrent and causing interference with military duty. 5. AR 635-40, in effect at the time, prescribed policies and procedures for the Army's implementation of the Disability Evaluation System (DES). a. Federal law established the DES, and its stated objectives were to maintain effective and fit military organizations with maximum use of available manpower; provide benefits for eligible Soldiers whose service were terminated due to a service- connected disability; and to provide prompt disability processing while ensuring the Soldiers' rights and the interests of both the government and Soldiers' were protected. b. Paragraph 3-1 (Standards of Unfitness Because of Physical Disability). The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it was necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. c. Paragraph 3-3 (Conditions Existing Before Active Military Service). According to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or started before the individual entered military service. 6. On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 7. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. a. 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 on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. 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. 8. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004059 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1