IN THE CASE OF: BOARD DATE: 13 December 2022 DOCKET NUMBER: AR20220005464 APPLICANT REQUESTS: in effect, * Reconsideration of his previous request for an honorable disability discharge or retirement * As a new issue, he requests his grade to show [E-3] and the issuance of any awards or medals APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * partial Department of Veterans Affairs (VA) summary of benefits letter * VA commissary privilege letter * VA Request for and Authorization to Release Health Information * DD Form 214 (Certificate of Discharge or Release from Active Duty) * rebuttal to medical advisory opinion in case AR20160011900 * personal letter to the Board (rank) * personal letter to the Board (aid and attendance compensation) * caregiver birth certificate * VA Review Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire * Police Division Criminal Record (4 pages) * Orders 95-114-037 * Orders C-07-434360 * Proposed Separation Action UP Entry Level Status Performance and Conduct - chapter 11 * Personnel Action 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 AR20160011900 on 20 December 2018. 2. The applicant states He suffered being sexually fondled during a blanket party. He does not understand why his drill sergeants did not report the incident. He was counseled for performance and conduct. He was forced to sign paperwork for a discharge he did not request while still in the hospital following his attempted suicide from cuts he applied to his left forearm. There should have been and investigation on the sexual assault, but it was thrown under the rug. He still suffers from the trauma and is reminded by the scars. In his first letter to the Board, he states his progress [prior to the trauma] was so superb that he knows without a doubt he was about to be promoted [to E-3]. In his second letter to the Board, he states he suffers from PTSD and erectile dysfunction as a result of the sexual assault. He requests Special Monthly Compensation for aid and attendance for his caregiver. This request will not be considered by the Board as it is outside the purview of the ABCMR and should be directed to the VA. 3. The applicant enlisted in the United States Army Reserve on 13 January for a period of 8 years in the delayed entry program (DEP). In the rank/grade of private/E-1. He was discharged from the DEP enlisting in the Regular Army for a period of 3 years on 17 March 1987. 4. The applicant completed basic combat training (BCT) at Fort Dix, NJ and was transferred to advanced individual training (AIT) at Fort Eustis, VA on 23 May 1987. 5. A DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant underwent a mental status evaluation on 1 June 1987. His behavior was passive. He was fully alert and oriented. His mood was anxious. His thinking process was clear with normal thought content. His memory was good. He was found to have the mental capacity to understand and participate in the proceedings and is mentally responsible. Remarks state: Evaluation reveals that this soldier is suffering from an Adjustment Disorder with Depressed Mood (DSM III 309.QO) characterized.by depressed mood, tearfulness, social withdrawal, insomnia, anhedonia and suicidal ideation without intent. These symptoms required hospitalization. It appears that he is reacting to an inability to adapt emotionally and socially to the military environment. It is strongly recommended that he be considered for an administrative discharge (Chapter 11). This diagnosis does not require disposition through medical channels. He is psychiatrically cleared for any administrative action deemed appropriate by his command. 6. On 2 June 1987, the applicant was notified he is not required to undergo a separation medical examination and afforded the opportunity to do so. However, he elected not undergo a medical examination for separation from active duty. He also acknowledged if he elected not to undergo a separation examination, his medical records will be reviewed by a physician at the appropriate medical treatment facility for determination if an examination should be accomplished. 7. The applicant’s medical records were reviewed, and a determination made that he did not require a medical examination. 8. On 3 June 1987, the applicant was notified that action was initiated to separate him from the Army under the provisions of AR 635-200, chapter 11, paragraph 11-3a for entry level status performance and conduct. The specific reason for the proposed action is he had demonstrated several symptoms of immature personality disorder and was not suited for military service. He was notified if approved, his separation will be uncharacterized - entry level separation. He was advised failure to complete the required active duty time, his VA and other benefits many be affected. He was advised of his right to consult with counsel, submit statements on his own behalf, obtain copies of documents that will be sent to the separation authority supporting the proposed separation. He was advised he may waive his right in writing. 9. The applicant acknowledge receipt of the notification of proposed separation action on 3 June 1987. He understood his service would be uncharacterized and would be transferred to the Individual Ready Reserve to complete his remaining service obligation. He elected not to make statements or submit documents. He elected not to consult with counsel and elected not to undergo a separation medical examination. 10. A DA Form 4856 (General Counseling Form) shows on 9 June 1987 the applicant was counseled concerning his referral to mental hygiene for evaluation. He was counseled on his inability to adapt to military life. He was advised to report to mental hygiene for evaluation after he had threatened to do things he said he would be sorry for if he was made to stay in the military. He was admitted into the hospital for approximately 3 days and was cleared for administrative discharge due to immature personality disorder. He was advised he was being discharged under chapter 11. 11. The proposed separation action was approved on 15 June 1987. 12. The applicant was released from active duty and transferred to the Ready Reserve on 17 June 1987 under the provisions of AR 635-200, paragraph 11-3a. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited 3 months 1 day net active service. His character of service shows Entry Level Status (uncharacterized), and narrative reason shows Entry Level Status Performance and Conduct. His DD Form 214 shows: * Blocks 4a (Grade, Rate or Rank) and 4b (Pay Grade) PVT/E-1 * Block 12h (Effective Date of Rank) 87-06-17 * Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): Marksman Badge (M-16 Rifle), Expert Badge (Hand Grenade), and Army Service Ribbon * Block 26 (Separation Code) JGA * Block 27 (Reenlistment Code) 3 13. Orders 95-114-037 show the applicant was honorably discharged from the Ready Reserve on 21 March 1995. 14. The applicant provided: a. Page 1 of a VA summary of benefits letter showing he has a combined service- connected evaluation of 100 percent. The effective date of when he became totally and permanently disabled was 19 February 2018. b. A VA commissary privilege letter that also states he is rated 100 percent due to service-connected disability. c. A VA Request for and Authorization to Release Health Information dated 16 February 2022, authorizing the VA to release his medical records to the Board. d. A copy of his VA Review PTSD Disability Benefits Questionnaire, dated 19 September 2018, showing he reported suffering from depressed mood and chronic sleep impairment. e. A copy of his criminal record from Hampton Police Division Central Records Unit, printed on 11 December 2017 showing criminal charges from 23 June 1988 to 21 October 2013. It shows charges for drunk in public, destroying property, trespassing, dumping trash on highway, concealment/shoplifting, grand larceny, possession of cocaine, assault/battery of a family member, contempt of court, robbery, possession of a controlled substance, failure to appear, brandishing a firearm, and urinating in public. f. Orders C-07-434360 showing he was voluntarily transferred between reserve units effective 18 July 1994. g. A personnel action showing he was reduced in grade of rank from PV2/E2 to PV1/E1 effective 3 February 1995. 15. Based on the applicant's contention the Army Review Boards Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 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 VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, 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 VA 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: a. The applicant is applying to the ABCMR requesting an honorable disability discharge or retirement, his grade to show E-3, issuance of any award or medals. He contends he was forced to sign paperwork for a discharge he did not request while still in the hospital following his attempted suicide. His misconduct was reportedly associated with PTSD secondary to MST. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 17 March 1987; 2) On 1 June 1987 he underwent a Mental Status Evaluation (MSE) whereby the examiner diagnosed him with adjustment disorder with symptoms requiring psychiatric hospitalization, determined him to be reacting to an inability to adjust to the military, and recommended he be administratively separated under provisions of AR 635 – 200 Chapter 11; 3) On 3 June 1987, the applicant was notified that action was initiated to separate him from the Army under the provisions of AR 635-200, chapter 11-3a, for entry level status performance and conduct; 4) He was relieved from active duty and transferred to the Ready Reserve on 17 June 1987 under provisions of AR 635-200, Chapter 11-3a, entry level status performance and conduct. c. Military medical records reviewed included DA Form 3822-R (Report of Mental Status Evaluation) dated 1 June 1987, showed the applicant was diagnosed with Adjustment Disorder with depressed mood, characterized by depressed mood, tearfulness, social withdrawal, insomnia, anhedonia, and suicidal ideation. The symptoms were noted to have required hospitalization. It was recommended the applicant be administratively separated, and it was noted he was cleared for administrative separation as his diagnosis did not require separation through medical channels. The applicant declined a medical examination for separation. A review of the VA electronic medical record (JLV) showed the applicant has a 100 percent service- connected diagnosis of PTSD secondary to MST associated with physical and sexual assault reportedly experienced during advanced individual training (AIT). According to the applicant he was physically assaulted via a blanket party by several soldiers and during the physical assault he was sexually fondled. He reported that following the assault he was afraid to sleep, became paranoid, and resorted to cutting. The applicant was subsequently hospitalized for suicidal ideation, depressed mood, and other associated symptoms. VA C&P Examinations dated 2 March 2018 and 8 April 2021, showed the applicant diagnosed with PTSD secondary to MST experienced during AIT. The applicant reported being jump by several soldiers, as he slept, because he’d likely been, unknowingly, talking to one of the assailants’ girlfriends. He reportedly did not report the assault because he couldn’t say with certainty who did it, and he feared he’d be assaulted again. The applicant reported having stayed awake all night following the incident, resorted to cutting, and was subsequently hospitalized for 3 days. According to the applicant, he was separated from the Army within a few days of the assault. d. The applicant appears to have first engaged the VA for BH-related treatment on 19 September 2018 at the Hampton, Virginia VA. He reported for a psychiatric intake with complaints of fatigue, sleep issues, continued nightmares, flashbacks, irritability, hyper-vigilance, irritability, and an exaggerated startle response, associated with his trauma. The applicant reported a history of cocaine and alcohol use disorder, that has been in remission since 2014, multiple instances of being jailed on drug related charges between 1987 and 2014, and continued struggles with engaging and trusting others. The applicant was diagnosed with PTSD, Cocaine Use Disorder, in full remission, and Alcohol Use Disorder, in full remission. He was scheduled for outpatient treatment via talk therapy and medication management. He remains in treatment to date and appears to consistently make appointments. e. The applicant contends that he was wrongfully separated from the military via Chapter 11 and “rushed through the formality at McDonald’s Army Hospital in a means of getting me discharged quickly”. He further contends that he did not have difficulty adjusting to the military, but instead had difficulty coping with the physical harm and abuse that he experienced. According to the applicant, because of the trauma, he should receive an honorable disability discharge or retirement. f. In an ideal situation, the applicant would have reported the assault and actions would have been taken to address the assault and protect the applicant. If actions were taken it is reasonable to infer the applicant would have completed AIT and advanced to a permanent party assignment. Given that, it is the recommended the Board considers an upgrade to HD with narrative reason of Secretarial Authority. As it relates to a disability discharge or retirement. A review of the records found no diagnosis that rendered the applicant unfit per AR 40-501 or required separation through medical channels. Likewise, there isn’t evidence to support the applicant was pending promotion to E-3. As related to awards, a review of his DD 214 appears to show the applicant was awarded all medals and commendations earned. g. Based on the available information, it is the opinion of the Agency BH Advisor that applicant had an experience or condition that mitigated his separation. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant is 100 percent SC for PTSD secondary to MST. (2) Did the condition exist or experience occur during military service? Yes. The trauma reportedly occurred during basic training. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant was administratively separated after being psychiatrically hospitalized, diagnosed with adjustment disorder, and recommended to command she be administratively removed because she could not adjust to the military environment. The applicant contends the hospitalization was secondary to being physically and sexually assaulted, resulting in depressed mood, withdrawal, cutting behavior and other associated symptoms. The applicant reported symptoms and difficulty coping are sequalae of trauma-related disorders, thus PTSD/MST is a mitigating factor in the applicant’s separation. (4) In an ideal situation the applicant would have reported the assault and actions would have been taken to address the assault and protect the applicant. If actions were taken it is reasonable to infer the applicant would have completed AIT and advanced to a permanent party assignment. Given that, it is the recommended the Board considers an upgrade to HD with narrative reason of Secretarial Authority. As it relates to a disability discharge or retirement. A review of the records found no diagnosis that rendered the applicant unfit per AR 40-501 or required separation through medical channels. Likewise, there isn’t evidence to support the applicant was pending promotion to E-3. As related to awards, a review of his DD 214 appears to show the applicant was awarded all medals and commendations earned. BOARD DISCUSSION: 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 applicant was released from active duty on 17 June 1987 under AR 635-200, paragraph 11-3a, entry level status performance and conduct (uncharacterized), after completing 3 months 1 day of active service. a. Regarding a disability separation, the Board reviewed the medical advisory finding that a review of the records found no diagnosis that rendered the applicant unfit per AR 40-501 or required separation through medical channels. Based on that, the Board determined that referral to the disability evaluation system is not warranted in this case. b. Regarding promotion to E-3, the applicant enlisted in the rank/grade of PVT/E-1, and he was separated after 3 months and 1 day in that same rank/grade. He did not meet the criteria to be advanced to PV2/E-2 (6 months) or PFC/E-3 (12 months) and there is no evidence he was recommended or promoted to a higher grade than that of PVT/-E-1. Based on that, the Board determined that changing his grade is not warranted in this case. c. Regarding awards and decorations, the applicant was awarded the Marksman Badge (M-16 Rifle), Expert Badge (Hand Grenade), and Army Service Ribbon. These awards are listed on his DD Form 214. There is no evidence he met the criteria for any additional service awards. Likewise, the Board found no evidence he was recommended for or awarded and personal decorations. d. Regarding the character of service, the applicant was administratively separated because he could not adjust to the military environment. The Board did not concur with the medical reviewer’s finding, that an upgrade of the discharge to fully honorable is appropriate. The Board determined that the applicant did not complete training and was not awarded an MOS; thus, an uncharacterized discharge is in fact appropriate. An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service. It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. As a result, there is no basis for granting the applicant's request. 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: 1. As for the new issues being considered (awards and grade) 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. 2. As for the issue being reconsidered (disability separation), 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 AR20160011900 on 20 December 2018. 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, U.S. Code, 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 11, provides for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. When separation of a Soldier in entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, he or she will normally be separated per this chapter. Service will be uncharacterized for entry-level separation under the provisions of this chapter. This policy applies to Soldiers in the Regular Army, Army National Guard (ARNG), and USAR who have completed no more than 180 days of continuous active duty or initial active duty for training (IADT) or no more than 90 days of Phase II under a split or alternate training option. 3. Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is 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 because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. Title 38 USC, section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 5. Title 38 USC, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 6. 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. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). a. Paragraph 3-2 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 7. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 8. 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, on those conditions or experiences. 9. Section 1556 of Title 10, USC, 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) AR20220005464 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1