IN THE CASE OF: 

		BOARD DATE: 27 January 2023

		DOCKET NUMBER: AR20220007204


APPLICANT REQUESTS: in effect, a physical disability retirement. 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:
DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 
Code, section 1552(b); 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 he was hospitalized during combat deployment for 16 days and 
given a medical profile, found unfit and chaptered under 5-17. His 5-17 retirement was 
voided in several criminal acts by actors his cadre recruited to commit crimes against 
the government administered injustice in application of laws that did not apply to his 
active duty service.  

3.  The applicant underwent a medical examination on 20 July 2001 for the purpose of 
enlistment.  His DD Form 2808 (Report of Medical Examination) shows he was qualified 
for service and assigned a physical profile of 111111.  

A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 
2808, is derived using six body systems:  "P" = physical capacity or stamina; "U" = 
upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = 
psychiatric (abbreviated as PULHES).  Each body system has a numerical 
designation:  1 meaning a high level of fitness; 2 indicates some activity limitations 
are warranted, 3 reflects significant limitations, and 4 reflects one or more medical 
conditions of such a severity that performance of military duties must be drastically 
limited.  Physical profile ratings can be either permanent or temporary.

4.  The applicant enlisted in the United States Army Reserve on 20 July 2001 for a 
period of 8 years in the delayed entry program (DEP). He was discharged from the DEP 
enlisting in the Regular Army for a period of 3 years on 9 August 2001.  
5.  The applicant completed his required training and was awarded the military 
occupational specialty (MOS) 92G (food service specialist) and assigned to Fort 
Campbell, KY effective 1 March 2002.  

6.  The applicant deployed to Iraq on 3 March 2003.

7.  A DA Form 2627 (Record of Proceedings Under Article 15 UCMJ) shows on 
16 June 2003, the applicant accepted non judicial punishment for willfully disobeying an 
order from a noncommissioned officer (NCO); use of disrespectful language toward a 
NCO; and wrongfully communicating a threat on or about 1 May 2003.  

8.  The applicant returned from Iraq on 14 August 2003. 

9.  DA Forms 4856 (Developmental Counseling Form) show the applicant was 
counseled as follows:  

	a.  On 21 October 2003, for failure to follow an order and failure to report on the 
following occasions: 0630 hours physical training (PT) formation on 20 October 2003; 
0630 hours PT formation on 21 October 2003; and 0845 hours accountability/award 
formation on 21 October 2003. 

	b.  On 22 October 2003, for failure to follow an order and failure to report on the 
following occasions: 1600 hours Building 4021 on 21 October 2003; and 0630 hours PT 
formation on 22 October 2003

	c.  On 24 October 2003, for failure to follow an order and failure to report on the 
following occasions: 0630 hours PT formation on 23 October 2003; and 0630 hours PT 
formation on 24 October 2003. 

	d.  On 24 October 2003, for failure to follow orders. 

10.  On 6 November 2003, the applicant underwent a mental status evaluation because 
he was being considered for discharge. His DA Form 3822-R (Report of Mental Status 
Evaluation) shows his behavior was normal and was fully alert and oriented. His mood 
was unremarkable. His thinking processes clear with normal thought content and good 
memory. He was determined to have the mental capacity to understand and participate 
in proceedings, was mentally responsible and meets the retention requirements for 
chapter 3, AR 40-501. The remarks show the applicant was advised of the purpose of 
the evaluation. The evaluation was required for chapter 14 separation. The applicant 
was psychiatrically cleared for any administrative action deemed appropriate by 
command.  

11.  The applicant underwent a medical examination on 8 November 2003. His DD 
Form 2808 shows no significant defects. He was qualified for separation and assigned a 
physical profile of 111111.  

12.  The applicant was counseled on 13 November 2003 to inform him of his pending 
chapter 14. He was advised he was being separated under chapter 14-12b for acts or 
patterns of misconduct. He had received an article 15 whiled deployed for disrespecting 
an NCO. Since his arrival to rear detachment, he has received several counseling 
statements in regard to his failure to report, disobeying orders and unsoldierly like 
behavior. 

13.  On 4 December 2003, the applicant was recommended for separation under the 
provisions of Army Regulation (AR) 365-200, chapter 14, paragraph 14-12b citing the 
specific reason for proposed action as: the applicant has, on at least eight occasions, 
failed to be at his appointed place of duty at the time prescribed. Further, he has willfully 
disobeyed the orders of a noncommissioned officer at least four times. He was 
recommended to receive a general, under honorable conditions discharge.  

14.  The applicant was notified on 4 December 2003 of his pending separation 
proceedings. He was advised of the specific reasons for the action and recommended 
character of service. He was advised the following:  

*	he had the right to consult with military counsel and/or civilian counsel at no 
expense to the government within a reasonable time (not less than 3 duty days) 
*	he may submit written statements on his behalf
*	he may obtain copies of documents that will be sent to the separation authority 
supporting the proposed separation
*	he may waive the rights listed above in writing, and may withdraw any such 
waiver any time prior to the date the separation authority orders, directs, or 
approves separation

15.  The applicant acknowledged receipt of notification on 4 December 2003. On 
9 December 2003, after consulting with counsel, he elected not to submit statements on 
his own behalf. He indicated he understood he may encounter prejudice in civilian life if 
a general discharge is issued. 

16.  The applicant was discharged on 19 December 2003 under the provisions of AR 
635-200 paragraph 14-12b for pattern of misconduct. He was issued a general under 
honorable conditions character of service. 

17.  On 9 August 2019, the applicant petitioned the ABCMR to upgrade his character of 
service to honorable. On 25 March 2021, the Board granted the applicant’s request. A 
new DD Form 214 was issued on 24 September 2021 showing the applicant’s character 
of service as honorable. 

18.  On 26 October 2022, the ABCMR requested the applicant provide copies of his 
military and other medical records to support his stated issued. He was also advised the 
supporting documents listed on his application were not attached. No response was 
received.  

19.  Based on the applicant's contention the Army Review Boards Agency (ARBA) 
medical staff provided a medical review for the Board members. See "MEDICAL 
REVIEW" section.  

20.  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.

21.  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.  

22.  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.

23.  MEDICAL REVIEW:

The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this 
case. Documentation reviewed included the applicant’s ABCMR application and 
accompanying documentation, the military electronic medical record (AHLTA), the VA 
electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the 
Medical Electronic Data Care History and Readiness Tracking (MEDCHART) 
application, and/or the Interactive Personnel Electronic Records Management System 
(iPERMS).  The ARBA Medical Advisor made the following findings and 
recommendations:  

    a.  The applicant is applying to the ABCMR requesting a discharge upgrade and, in 
essence, a referral to the Disability Evaluation System (DES).  He states:

“I was hospitalized during combat deployment for 16 days, given medical profile, 
found unfit, chaptered under 5-17.”

    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 entered the Regular Army on 9 August 2001 and was honorably discharged 
on 19 December 2003 under the separation authority provided by paragraph 14-12b of 
AR 635-200, Personnel Separations – Enlisted Personnel (1 November 2000): Pattern 
of Misconduct.  The applicant, a former 92G (Food Service Specialist), served in Iraq 
from 3 March 2003 thru 14 August 2003.

    c.  The applicant’s request for a discharge upgrade was granted by the ABCMR on 
25 March 2021 (AR20190013896), and his characterization of service was changed 
from under honorable conditions (general) to honorable.  This change made the 
applicant eligible for the DES.  The board is referred to the ROP and medical advisory 
opinion from that case.  This advisory will focus on new evidence submitted by the 
applicant and whether the applicant had a medical condition which failed medical 
retention standards prior to his administrative separation.

    d.  From the psychologist’s medical advisory from AR201913896:

“A Report of Mental Status Evaluation dated 06 Nov 2003 determined normal 
behavior and unremarkable mood/affect and being psychiatrically cleared for 
administrative actions.  A Memorandum for Commander, dated 04 Dec 2003, 
called for Separation under Chapter 14 noting, "has on at least eight occasions 
failed to be at appointed place of duty ... disobeyed the orders of 
Noncommissioned Officer at least four times."  

The VA electronic medical record, Joint Legacy Viewer (JLV) did indicate a 
service-connected disability at 100% with Posttraumatic Stress Disorder, Chronic 
100%, Migraine Headaches 50%, Irritable Colon 30% and Tinnitus 10%.  In an 
Addendum to Psych Inpatient Admit Note, dated 19 Apr 2013, it was noted, 
"struggling with adjusting to civilian life ever since serving in Iraq.  During the war 
Pt witnessed traumatic experiences ... saw a young girl with her mother and the 
young girl got shot and killed."  It was further noted, "reports flashbacks, 
hypervigilance and avoidant behavior ... since his time in Iraq ... struggled with 
relationships and keeping jobs."  He also reported in this session some recent 
homicidal ideation toward a group of people who threatened him.

The provider diagnosed him with PTSD, Chronic, Depressive Disorder NOS, and 
Personality Disorder traits.  In a treatment session, Mar 2015, he reported that he 
was living in a car.  In a Nov 2017 treatment session, he indicated having 
depression, nightmares, and suicidal ideation, using THC 2-3 times a week, 
dealing with a DV case and being overwhelmed with responsibilities in life.  The 
Problem List included Posttraumatic Stress Disorder, Chronic (10 May 2019), 
Other Depressive Episodes (07 Nov 2016), Homeless (25 Feb 2015), Headache 
(10 Jun 2013) and Anxiety State (18 Jan 2011) ...

Chronological review of his military career indicates a dramatic change in the 
applicant's motivation, temperament and level of instability occurred during and 
after his deployment to Iraq.  Such a radical change in behavior is consistent with 
the behavioral changes seen in soldiers who develop combat related PTSD.  A 
discharge upgrade is recommended.”

    e.  Review of the applicant’s records in JLV confirm this provider’s case analysis.  His 
first known mental health evaluation was at a Veterans Hospital Administration facility 
on 18 January 2011:

“Chief Complaint: ‘I'd probably say I may suffer from some of the symptoms of 
PTSD but don't think I suffer from all of them...and I've been in a few incidents 
with the police....’

HPI: … Says PTSD would be from his experiences in Kuwait-they were in the 
next camp over from where the Sgt shot the XO {executive officer} and others 
and they heard about it.  Other incident involved when a woman walked past 
them at Amusement Park they had just took over and by the time she turned the 
corner ‘sniper from across the street had shot the baby...came running back, 
blood all over...broke my heart...shocked.’

‘I wouldn't necessarily say I have a temper problem.  Where I messed up is 
moving to instead of out west because this is such a racist place.” 

As for what symptom's he might have of PTSD ’probably depression’ which is 
feeling tired for day or 2, max 3 days when he's been going through something, 
again offers he doesn't think he has a temper problem but talks of ‘ever since I 
got back’ being more irritable … Unable to illicit other symptoms of PTSD.

PAST PSYCH: No history of symptoms of mania, delusions.  No remote 
discharge summaries or notes (except for pre/post deployment assessments). 
No history of prior psychiatric contact.

    f.  The psychiatrist’s assessment: “Consider possible anxiety disorder not otherwise 
specified (Consider denied PTSD).”  The provider discussed possible avenues of care 
and indications to seek urgent or emergent behavioral health care with the applicant:

“Declines pharmacologic trial but agrees to ‘I'll think about it’, desires referral to 
Anger Management Group and declines appointment for follow-up but says he 
will call and schedule it {if} he decides to try medication or as needed as 
discussed with him in lay terms for low threshold symptoms.”

    g.  While the applicant’s service record shows a decrease in his performance as a 
Soldier following his deployment in Iraq, there is no probative evidence the applicant 
had a mental health condition such as depression, anxiety disorder, or even PTSD 
would have failed medical retention standards prior to his administrative separation for 
misconduct.  

    h.  Paragraphs 3-32 (Mood disorders) and 3-33 (Anxiety disorders) of AR 40-501, 
Standards of Medical Fitness (29 August 2003), are the same, both stating a mental 
health condition fails medical retention standards for:

“a. Persistence or recurrence of symptoms sufficient to require extended or 
recurrent hospitalization; or

b. Persistence or recurrence of symptoms necessitating limitations of duty or duty 
in protected environment; or

c. Persistence or recurrence of symptoms resulting in interference with effective 
military performance.” 

    i.  There is no probative evidence the applicant had such a condition prior to his 
administrative separation.  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.

    j.  Review of his records in JLV shows that in addition to his PTSD, he has been 
awarded VA service-connected disability ratings for migraine headaches, irritable colon, 
and tinnitus.   There is no contemporaneous medical documentation showing these 
condtions were significant medical issues during his Service. 

    k.  The DES compensates service members for conditions incurred during or were 
permanently aggravated by their military service when they cause or contribute to 
career termination, not after an administrative discharge.  It has neither the role nor the 
authority to compensate service members for anticipated future severity or potential 
complications of conditions incurred during their Service.  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 Agency medical advisor that a referral of his case to the 
Disability Evaluation System is not warranted.  


BOARD DISCUSSION:

1.  The Board carefully considered the applicant's request, evidence in the records, a 
medical review, and published Department of Defense guidance for liberal consideration 
of discharge upgrade requests.

2.  The Board concurred with the conclusion of the ARBA Medical Advisor that the 
evidence does not support a conclusion that the applicant had any conditions prior to 
his separation that warranted his referral to the Disability Evaluation System.  Based on 
a preponderance of the evidence, the Board determined the applicant’s discharge for a 
pattern of misconduct was not in error or unjust.


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, 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets 
forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes 
policy and prescribes procedures for separating members for misconduct. Specific 
categories include minor disciplinary infractions, a pattern of misconduct, commission of 
a serious offense, and convictions by civil authorities. Action will be taken to separate a 
member for misconduct when it is clearly established that rehabilitation is impracticable 
or is unlikely to succeed. 

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.  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.  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.  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)	AR20220007204


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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