IN THE CASE OF: 

		BOARD DATE:  15 February 2023

		DOCKET NUMBER: AR20220007334


APPLICANT REQUESTS: This case comes before the Army Board for Correction of
Military Records (ABCMR) on remand from the United States Court of Federal Claims
(hereinafter refer to as The Court).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	United States Court of Federal Claims Order, filed 16 March 2021
*	United States Court of Federal Claims Order, filed 26 August 2022
*	Counsel’s Letter and Memorandum in Support of Second Remand

FACTS:

1.  Following a 14 September 2021 decision by the ABCMR (AR20210008007) and 6 
October 2021 Office of the Surgeon General (OTSG) opinion, the applicant and the 
United States filed cross motions for judgment on the administrative record. On 17 
August 2022, the Court issued an opinion and remanded the case back to the ABCMR 
for reconsideration. The order notes that in the applicant's complaint, "[The applicant] 
was entitled to disability retirement processing, including a referral to a Medical 
Evaluation Board (MEB) and/or a Physical Evaluation Board (PEB); the reasons for [the 
applicant’s] discharge and whether it was inconsistent with [the applicant’s] medical and 
personnel records; whether [the applicant] received proper counseling and an 
opportunity to cure identified issues in his records; the propriety of [the applicant’s] 
determination of fitness, in accordance with Army procedures; whether or not [the 
applicant] should have been medically retired based on [the applicant’s] diagnosis of 
post-traumatic stress disorder (PTSD) in accordance with the September 3, 2014 
Secretary Hagel Memorandum directing military boards to grant liberal consideration in 
PTSD cases; as well as any consideration of other relevant issues in [the applicant’s] 
case."

2.  The court concluded that the ABCMR acted arbitrarily and capriciously when it failed 
to address the conflicting medical evidence. The court ordered a remand and directed 
the ABCMR to review, at a minimum, the following: whether plaintiff was entitled to 
disability retirement processing, including a referral to a MEB and/or a PEB, the effect of 
the Army's failure to afford plaintiff ample opportunity to overcome stated deficiencies 
and the reasons for plaintiffs discharge as inconsistent with plaintiffs medical and 
personnel records; that plaintiff did not receive proper counseling or an opportunity to 
cure any medical identified issues in his records; and the propriety of plaintiffs 
determination of fitness, in accordance with Army procedures; whether or not plaintiff 
should have been medically retired based on plaintiffs diagnosis of PTSD in accordance 
with the 3 September 2014 Secretary Hagel Memorandum directing military boards to 
grant liberal consideration in PTSD diagnoses cases, as well as any other relevant 
issues in plaintiffs case or in plaintiffs records. 

3.  Incorporated herein by reference are military records which were summarized in the
previous consideration of the applicant's cases by the ABCMR in Docket Number
AR20170010064 on 6 May 2019 and Docket Number AR20210008027 on 14 
September 2021.

4.  The 17 August 2022 opinion outlines the reasons the court denied the Government’s 
(defendant) motion to dismiss for lack of subject matter jurisdiction and motion for 
judgment on the Administrative Record. The court also denied the defendant’s motion 
for judgment on the Administrative Record. The case was again remanded to the 
ABCMR for thorough consideration and is provided in full for review by the Board. The 
reasons state, in part:

	a.  On 5 June 2009, Dr. at the Hampton Veterans Affairs Medical Center referred 
[the applicant] to the PTSD Clinical Team (PCT) to be evaluated for PTSD, combat 
related. On 23 July 2009, Dr.  a psychiatrist and PCT member at the Hampton Veterans 
Affairs Medical Center, evaluated [the applicant]. On 26 October 2009, the PTSD 
Stressor/Vietnam Service Specialist Division indicated that the stressor for [the 
applicant’s] PTSD is a "motor vehicle accident in that resulted in injury to himself and 
two fatalities." On 14 November 2009, Dr. from the Department of
Veterans Affairs conducted a special psychiatry examination on [the applicant] and 
diagnosed him with PTSD. On 11 December 2009, the United States Department of 
Veterans Affairs issued a Rating Decision granting [the applicant] service connection for 
PTSD evaluated at 30% disabling, effective 12 May 2009, the day the Department of 
Veterans Affairs received [the applicant’s] claim. The applicant filed an appeal for the 
rating provided and on 21 June 2011, the Department of Veterans Affairs issued a 
Rating Decision increasing [the applicant’s] evaluation of PTSD from 30 percent 
disabling to 70 percent disabling and entitlement to individual unemployability effective 
17 May 2010. 

   b.  In the above captioned case, the Army discharged [the applicant] on April 15, 
2004. As reflected in the Administrative Record before the court, prior to discharge, [the 
applicant] was not evaluated by an MEB or a PEB. As indicated above, Secretary Hagel 
issued the 3 September 2014 memorandum directing military boards to provide "liberal
consideration" for "one or more symptoms which meet the diagnostic criteria of PTSD or 
related conditions," nearly ten years after [the applicant’s] discharge from the Army. On 
6 May 2019, the ABCMR denied [the applicant’s] application to be medically retired, 
stating that while plaintiff "did not file within the three-year time frame provided in Title 
10, United States Code (USC), section 1552 (b)” that the ABCMR nevertheless 
"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." The ABCMR concluded that 
"[a]fter reviewing the application and all supporting documents, the Board determined 
that relief was not warranted. Based upon the medical advisory finding that he [sic] 
applicant met retention standards, the Board concluded that there was insufficient
evidence to justify making a change to the narrative reason for separation."

	c.  Defendant asserts that "waiver of board review" applies to [the applicant] 
because [the applicant] had, at a minimum, constructive knowledge of his condition in 
2004 at the time he administratively separated from the Army. According to defendant, 
because [the applicant] had constructive notice of his disability in 2004, his claim 
accrued upon his discharge on 15 April 2004. Defendant asserts that [the applicant] had 
until 15 April 2010 to file his claim in this court, and the failure to file suit until January 
2021 results in plaintiff's claim being timebarred. Counsel for the applicant responds by 
asserting, albeit without reference to any case citations, that the "waiver of board 
review" does not apply to [the applicant’s] claim for medical retirement because [the 
applicant] did not know at the time of discharge that he was entitled to a medical 
retirement due to a permanent disability and, further, because the Army did not inform 
[the applicant] that the failure to demand a Board prior to discharge would result in 
ineligibility for disability retirement. Counsel for the applicant states, citing 10 U.S.C. § 
1201 and DoDI 1332.18, that he "did not know at the time of discharge that he was 
entitled to a medical retirement due to permanent disability under the arcane rules 
governing that analysis." Regardless, each case must be evaluated on the specific facts 
of each case before the court.

   d.  Counsel for the applicant contends that the Army gave "plain signals" to [the 
applicant] that he was not eligible for medical retirement by indicating that [the applicant] 
met medical retention standards and that he did not require disability processing at the 
time of his separation. Counsel asserts that "there is no evidence in the record that [the 
applicant] knew the extent of his mental illness prior to his discharge-much less 'that he 
knew he had a permanent disability that entitled him to disability retirement." He should 
have been processed by an MEB and PEB. He alleges he "was never in a position to 
demand a PEB prior to discharge because the Army erroneously diagnosed him with 
adjustment disorder and/or personality disorder both of which are not subject to
review by a PEB." [The applicant] claims he was never referred to the Disability 
Evaluation System, which was the only way a service member could obtain review by a 
PEB. In the defendant’s reply brief, the defendant argues that [the applicant’s] 
arguments that "his mental health condition was sufficiently severe to warrant medical 
retirement effective in 2004, and that he did not have knowledge of his disability 
sufficient to trigger the Real exception" are "not compatible." Defendant argues that [the 
applicant’s] claim that he was "'never in a position to demand a PEB"' is "not correct" as 
plaintiff could have requested command or counsel referral if he did not agree with the 
results of his pre-separation physical.

	e.  In [the applicant’s] case, the relevant inquiry is whether, at the time of [the 
applicant’s] separation from the Army in 2004, he understood that he was entitled to 
disability retirement due to a permanent disability that was not a result of his intentional 
misconduct and was service connected under 10 U.S.C. § 1201. As articulated in v, 
U.S., "[w]hether the veteran's knowledge of the existence and extent of his condition at 
the time of his discharge was sufficient to justify concluding that he waived the right to 
board review of the service's finding of fitness by failing to demand a board prior to his 
discharge must be determined by reference to the statutory requirements for entitlement 
to such benefits."

   f.  The 3 September 2014 Secretary Hagel Memorandum instructed that "[l]iberal
consideration will be given in petitions for changes in characterization of service to
Service treatment record entries which document one or more symptoms which meet 
the diagnostic criteria of Post-Traumatic Stress Disorder (PTSD) or related conditions." 
At the time of his discharge, [the applicant] was diagnosed with a potential "Adjustment 
Disorder with Depressed Mood and Nicotine Dependence," and the Administrative 
Record suggests that [the applicant] did not understand the extent, or even the 
existence of his having, a diagnosis of a PTSD disability to understand the 
consequences of waiving board review at the time of his discharge. Although [the 
applicant] may have been aware of some of his symptoms, [the applicant’s] limited 
understanding of his mental health issues does not amount to constructive notice of his 
actual disabilities sufficient to reach an informed decision to waive or not waive future 
Board review rights.

   g.  The parties have cross-moved for judgment on the Administrative Record. [The 
applicant] asserts that the ABCMR acted arbitrarily and capriciously when it failed to 
address the Army's procedural errors, failed to consider all substantial evidence that 
runs counter to its decision, and failed to determine that plaintiff meets the requirements 
of a disability retirement under 10 U.S.C. § 1201. RCFC 52.1(c)(1) governs motions for 
judgment on the administrative record. The court's inquiry is directed to "whether, given 
all the disputed and undisputed facts, a party has met its burden of proof based on the 
evidence in the record." In addition to [the applicant] alleging that he was unfit to 
perform his duties because of his service related PTSD, [the applicant] asserts that he 
meets the rest of the requirements under 10 U.S.C. § 1201 for medical retirement. As 
indicated above, disability retirement under 10 U.S.C. § 1201 requires that the service 
member is unfit for service at the time of his discharge.

	h.  In [the applicant’s] case, harmless error review would require this court to 
determine that absent the Army's procedural errors, the reason for [the applicant’s] 
separation, as well as his ineligibility for MEB and PEB referral, would still have been 
appropriate and that [the applicant] was still fit for service. Counsel for the applicant 
asserts, “If the Army had followed its procedures and taken the requisite time and effort 
to counsel [the applicant, then it would have determined that the appropriate diagnosis 
for his disability is PTSD. Because an involuntary administrative separation is not 
appropriate for a disability like PTSD, the Army would have processed him through a 
Medical Evaluation Board ("MEB") and Physical Evaluation Board, rather than rushing 
to discharge him for a condition it has now admitted he did not have.” Counsel for the 
applicant argues that the ABCMR’ s decision arbitrarily disregards the "overwhelming
evidence" that the applicant suffered from PTSD.

	i.  The discussion section of the ABCMR's 14 September 2021 decision was only 
two paragraphs, concluding that [the applicant’s] “Condition-not a disability” is the 
appropriate basis for separation" without substantive analysis. The 6 October 2021 
Advisory Opinion was similarly cursory and was just four short paragraphs long in its 
entirety. The 6 October 2021 Advisory Opinion concluded that "adjustment disorder" is 
clinically appropriate at the time of [the applicant’s] separation. The 6 October 2021 
Office of the Surgeon General Memorandum was two short paragraphs relying heavily 
on the Advisory Opinion and determined that a Medical Evaluation Board was not 
warranted at separation. The three decisions (available for review by the Board) do not 
reconcile the conflicting evidence regarding [the applicant’s] "adjustment disorder" 
diagnosis at the time of separation. First, the Diagnostic and Statistical Manual of 
Mental Disorders, DSM-IV-TR at the time of [the applicant’s] separation stated that an 
adjustment disorder occurs "in response to an identifiable stressor within 3 months of 
the onset of the stressor and does not persist for more than 6 months after the 
termination of the stressor or its consequences," however, [the applicant]  was first 
diagnosed with "adjustment disorder" on 28 August 2002, one year and eight months 
prior to [the applicant’s] separation from the Army.

	j.  Second, the three decisions fail to reconcile the 2017 Advisory Opinion in which 
Dr. S concluded that [the applicant’s] "military medical records DO support a PTSD 
diagnosis at the time of discharge in accordance with the Secretary of Defense 2014 
Liberal Guidance guidelines" with their decisions that [the applicant] had an "adjustment 
disorder" at the time of discharge. In this context, the 2014 Hagel memorandum directed 
military correction boards that "[s]pecial consideration will be given to Department of 
Veterans Affairs (VA) determinations which document PTSD or PTSD-related conditions 
connected to military service" and [the applicant] received several Department of 
Veterans Affairs determinations granting [the applicant] service connection for PTSD, 
ultimately for 70 percent disabling, effective 17 May 2010.

	k.  Third, the Office of the Surgeon General Memo failed to consider [the applicant’s] 
“[v]iolent tendencies," hospitalization, and the mental health evaluation that [the 
applicant’s] disorders are "so severe that the soldier's ability to function effectively in the 
military environment is significantly impaired" when determining that [the applicant] met 
medical retention standards and did not require disability processing. Therefore, 
because the ABCMR did not consider available, relevant evidence that ran counter to 
the reasons given for [the applicant’s] separation and [the applicant’s] medical retention
standard determination, the ABCMR did not consider all the substantial evidence.

5.  On 7 November 2022, the applicant through his counsel noted on 17 August 2022, 
the Court found, among other things, that "the ABCMR acted arbitrarily and capriciously 
when it failed to address the conflicting medical evidence." Therefore, the applicant 
respectfully requests that the ABCMR take the opportunity the second remand has 
provided it and correct his military records to reflect a medical retirement under 10 
U.S.C. § 1201 and Army Regulation 635-40 for being unfit because of physical disability 
due to PTSD with at least a 50% disability rating. The applicant defers to counsel (27 
pages) for additional information, the full memorandum is available for review by the 
Board. Counsel states in part:

	a.  The applicant honorably served his country in the United States Marine Corps 
("USMC") from 12 November 1998 to 11 November 2002 and in the United States Army 
("Army") from 6 August 2003 to 15 April 2004. While serving “in the USMC,” the 
applicant was exposed to at least two traumatic events. First, he was a passenger in a 
severe motor vehicle accident that resulted in the deaths of two individuals. Second, 
while deployed to Afghanistan, he was exposed to combat including improvised 
explosive devices ("IEDs"), suicide bombings, and other direct and indirect attacks from 
insurgents. Over time, the applicant developed physical and mental injuries due to these 
traumatic events. Following his discharge from the USMC due to completion of his 
required service, he enlisted in the Army.

	b.  Instead of recognizing that the applicant was exposed to traumatic events while 
serving in Afghanistan and developed a mental health condition as a result of this 
exposure, the Army administratively separated him under Army Regulation ("AR") 635-
200, Paragraph 5-13, for a personality disorder. The determination was not supported 
by the applicant’s medical records, which indicate that he was suffering from PTSD. The 
determination was also in direct violation of Army and Department of Defense 
regulations. Before being separated from the Army, the applicant should have been 
processed by a MEB and PEB and found unfit for further military service due to PTSD 
that was more than 30% disabling - thereby entitling him to monthly military disability 
retirement and TRICARE. The applicant’s medical records show that he should have 
been medically retired because of his PTSD, under AR 635-40 and Section 1201 of Title 
10, Chapter 61 of the United States Code.

	c.  The applicant applied to the ABCMR on 12 June 2017 requesting a medical 
retirement due to PTSD and on 20 May 2019, the Board denied his request. The 
applicant turned to the United States Court of Federal Claims ("the Court"), asserting 
that the Army and ABCMR's actions and determinations to deny him a disability 
retirement were unsupported by substantial evidence, arbitrary and capricious, and
contrary to law, and sought an order to correct his records and grant him a disability 
retirement with all applicable benefits and monetary relief. On 9 March 2021, the United 
States requested that the applicant’s case before the Court be remanded to the Board 
with instructions to reconsider whether the applicant was entitled to correction of his 
military records, and the Court granted his request. On remand, the Board did not grant 
the applicant the relief he requested and in a decision issued 14 September 2021, the 
Board determined that "the narrative reason and separation authority for the applicant's 
separation for a personality disorder was erroneous," and "a narrative reason of  
‘Condition, not a disability’ was the appropriate basis for his separation." The Board also 
determined that "a preponderance of the evidence . . . supports referring the applicant's 
record to the Office of the Surgeon General for review to determine if the discharge [the 
applicant] received accurately depicts his conditions as they existed at the time or if he 
had any diagnoses that did not meet retention standards prior to discharge warranting 
referral through the Disability Evaluation System."

	d.  On 6 October 2021, the Office of the Surgeon General issued a decision opining 
that "the diagnosis of an Adjustment Disorder" was appropriate, and that there was no 
"clinical evidence of any other stand-alone serious [behavioral health] condition that 
would have required MEB separation under the Integrated Disability Evaluation System 
(IDES). Consequently, on 14 October 2021, the Board determined that the applicant 
"did not require disability processing at the time of separation." After the Board issued 
its remand decision, on 10 December 2021, the applicant filed an Amended Complaint 
seeking review of the Board's 14 September 2021 and the 14 October 2021 Army 
Review Boards Agency's (ARBA) decisions. The Court found that, in violation of the 
mandate that "the military is bound to follow its own procedural regulations. Specifically, 
"the Army failed to follow its own separation procedures for a personality disorder," and-
"[e]ven if, as the ABCMR found, plaintiff should have been separated for a 'Condition- 
not a disability,' the Army failed to follow its own established procedures" for such a 
separation. The Court further found that the Board "did not consider available, relevant 
evidence that ran counter to the reasons given for [the applicant's] separation and [the 
applicant's] medical retention standard determination," and held that, by failing to
address such conflicting evidence, "the Board acted arbitrarily and capriciously."

	e.  On 14 September 2017, the ABCMR provided the applicant an advisory opinion 
from the ARBA medical advisor. The Advisory Opinion erred in at least two critical 
respects. First, it stated the applicant was diagnosed with an adjustment disorder in 
December 2003, yet it failed to acknowledge that the applicant was first diagnosed with 
an adjustment disorder with mixed anxious/depressed mood on 28 August 2002. The 
applicant suffered from symptoms of anxiety and depression for over a year. And, as an 
adjustment disorder is a temporary condition and symptoms must resolve within 6 
months of the stressor, the adjustment disorder diagnosis was inappropriate. Moreover, 
even if the applicant had an adjustment disorder, he should have been allowed an 
appropriate amount of time prior to being separated in order to confirm the existence of 
such a disorder. Yet, the adjustment disorder diagnosis upon which the applicant's 
separation was premised was made on 22 December 2003, and he was separated from 
the Army less than 4 months later, on 15 April 2004. If the applicant had been properly 
granted 6 months for the condition to develop and to overcome any deficiencies before 
his discharge, rather than only 4, he would not have been improperly classified as 
having deficiencies because of an adjustment disorder. At that point, any deficiencies 
would be attributed to a mental health disability, such as PTSD, and not an
adjustment disorder because his symptoms would not have resolved within 6 months of
termination of the stressor.

	f.  Second, the Advisory Opinion concluded that the applicant's "behavioral health 
symptoms, while likely due to some type of combat stress reaction, and did not fulfill the 
diagnostic criteria for PTSD according to the DSM-V." The applicant’s symptoms do in 
fact fulfill the diagnostic criteria for PTSD according to the DSM-V, or the DSM-IV that 
was in effect at the time of his evaluation and discharge from the Army. At a post-
discharge PTSD evaluation on 5 June 2009, at Hampton VA Medical Center, the 
applicant was diagnosed with PTSD on Axis I under the DSM-IV. The Advisory Opinion 
also included findings supporting the applicant's application for a correction of his 
records. It concluded that his "Chapter 5-13 discharge for Personality Disorder was 
incorrect as [the applicant] had never been diagnosed with a Personality Disorder." It 
also found that the applicant's "military medical records did support a PTSD diagnosis
at the time of discharge in accordance with the Secretary of Defense Liberal Guidance 
guidelines."

	g.  On the second remand, the Court determined that, in contravention of federal 
law, the Army failed to follow its own regulations, and that the Board's decision to deny 
correction of the applicant's separation reason to a medical retirement due to PTSD is 
unsupported by the facts, and thus its decision is arbitrary and capricious. The Board 
changed the narrative reason for the applicant's separation to "Condition not a 
disability," and it adopted the Surgeon General's determination that "the diagnosis of an
Adjustment Disorder is clinically appropriate to describe [the applicant’s] clinical picture 
at the time and this condition was acceptable at the time," and "[t]here is no clinical 
evidence of any other stand-alone serious [behavioral health] condition that would have 
required MEB separation under IDES." Any determination that the appropriate diagnosis 
for the applicant's mental health disability is Adjustment Disorder is erroneous as it fails 
to acknowledge that a significant trauma/stressor (i.e. combat deployment) caused his 
condition, and an adjustment disorder diagnosis cannot be caused by such a significant 
trauma/stressor or last for more than 6 months. In addition, the diagnosis of adjustment 
disorder ignores the Board advisory opinion confirming that the applicant displayed 
symptoms of PTSD at the time of his discharge as well as other medical evidence 
establishing PTSD.

	h.  Separation under AR 635-200 is not without limitation. The Army has established
specific prerequisites to initiate Separation for adjustment disorders. None of which 
were followed the applicant's case or found by the Board to have been satisfied. The 
Department of Defense allows for administrative separations based on mental 
conditions not amounting to a disability that potentially interfere with assignment to or 
performance of duty, including "disorders manifesting disturbances of perception, 
thinking, emotional control or behavior sufficiently severe that the soldier's ability to 
effectively perform military duties is significantly impaired." However, separation 
because of such disorders requires, among other things, that the commander must 
"refer the soldier for a medical examination and/or mental status evaluation in 
accordance with AR 40-501," and that the Soldier must be "counseled formally 
concerning deficiencies" and "afforded ample opportunity to overcome those 
deficiencies." There is nothing in the applicant's records that indicate that he received 
any developmental counseling after he was notified of his commanding officer's intent to 
recommend his separation.

	i.  Thus, as the Court found, "the Army failed to follow its own separation procedures 
for a personality disorder." And even if as the Board found the applicant should have 
been separated for a "Condition not a disability," the Army failed to follow its own 
established procedures for such a separation. With his controlling diagnosis firmly 
established as PTSD, a separation for a "Condition not a disability" is not appropriate. A 
service member who is diagnosed with PTSD must be evaluated for a disability 
retirement through the Army's Disability Evaluation System. The record is replete with 
evidence that the applicant suffered and continues to suffer from PTSD; he did not, nor 
does he now suffer from an adjustment disorder. Therefore, the Board's decision to 
deny his request that his records be corrected to reflect a medical retirement under 10 
U.S.C. § 1201 and AR 635-40 for being unfit because of physical disability due to PTSD 
with at least a 50% disability rating is unsupported by the facts.

	j.  First, the Board did not consider the Army Review Board's Medical Advisory's 
opinion concluding that [the applicant’s] "military medical records DO support a PTSD 
diagnosis at the time of discharge in accordance with the Secretary of Defense Liberal 
Guidance guidelines." Second the Board failed to consider the post-discharge PTSD 
evaluation on 5 June 2009, at Hampton VA Medical Center, where the applicant was 
diagnosed with PTSD on Axis I under the DSM-IV. Third, the Board ignored that since 
2009, the applicant has been consistently diagnosed with PTSD by the VA under the 
DSM-IV and DSM-V. Because the VA and Physical Evaluation Board processes use the 
same ratings scale to assess the degree of a Veteran's disability, VA ratings are 
"entitled to great weight." In properly considering this favorable evidence in support of a 
medical retirement, there's no doubt that the controlling diagnosis for the applicant's
condition was combat-related PTSD and not adjustment disorder, his PTSD symptoms 
caused him to be unfit for military service, and his PTSD was at least 30% disabling. 
Because overwhelming evidence demonstrates that the applicant was, in fact, entitled 
to a disability retirement, the Board should take this second remand as an opportunity 
to, finally, grant him that retirement and respective benefits.

6.  A review of the applicant’s service record shows:

   a.  He served on active duty in the USMC from 12 November 1998 to 11 November 
2002. He enlisted in the Regular Army on 6 August 2003. He arrived in Korea in 
November 2003. 
   
   b.  A DD Form 2808 (Report of Medical Examination), dated 1 June 2003, shows the 
applicant was undergoing an examination for the purpose of enlistment.  The applicant’s 
clinical evaluation was marked normal with the exception of mild, asymptomatic pes 
planus, and in block 74a (Examinee/Applicant) he was marked qualified for service.
   
   c.  A DA Form 4856 (Developmental Counseling Form) shows that on 21 December 
2003, the applicant was referred to the emergency room due to suicidal threats and 
violent tendencies. He was seen by the physician on duty and after speaking with the 
applicant, a determination was made that he was not a threat to himself or others. The 
applicant was released with a follow up appointment the following day for a medical 
evaluation.
   
   d.  On 22 December 2003, the applicant underwent a mental status evaluation. The
evaluating psychologist indicated the following:  Based upon the evaluation, the
diagnostic impression is adjustment disorder with depressed mood and nicotine
dependence. These represent psychiatric conditions within the meaning of DSM IV-TR.
Further, the disorders are so severe that the Soldier's ability to function effectively in the
military environment is significantly impaired. This problem is long standing and not
treatable in the context of military service. It is the opinion of the examiner that this
member has no potential to meet mobilization requirements, clearly has no potential for
useful service under conditions of full mobilization, and that discharge from the Army 
under chapter 5-17 [of Army Regulation (AR) 635-200] would be in the best interest of 
both the individual and the Army. Although this individual is not actively suicidal or 
homicidal, the potential exist that this individual may deteriorate to a suicidal or 
homicidal state. Delays in the chapter process will increase this risk. Delays in the 
chapter process could also bring serious problems to the command. Any means to 
expedite the chapter should be used.

   e.  A DA Form 2173 (Statement of Medical Examination and Duty Status), signed by 
the physician on 27 December 2003, confirmed the applicant was seen for depression 
which he had been suffering from for 1 month due to family problems. The physician 
noted the applicant had no suicidal thoughts.
   
   f.  The applicant underwent a medical evaluation for the purpose of separation. He 
indicated he was “the same,” for overall health in comparison to his prior medical 
assessment. The applicant further noted he still had back pain from prior service; 
however, he was marked qualified for service and assigned a physical profile serial 
system (PULHES) code of 111111.
   
*	DD Form 2697 (Report of Medical Assessment) dated 29 December 2003
*	DD Form 2807-1 (Report of Medical History) dated 29 December 2003
*	DD Form 2808

   g.  On 1 February 2004, the applicant's commander informed the applicant he was
initiating action to separate him under the provisions of AR 635-200 (Active Duty 
Enlisted Administrative Separations), paragraph 5-13 for personality disorder, based on 
his diagnosis of adjustment disorders with depressed mood and nicotine dependence. 
The applicant acknowledged receipt on the same day.

   h.  On 7 February 2004, the applicant consulted with legal counsel and he was
advised of the basis for he contemplated action to separate him for a personality 
disorder under the provisions of AR 635-200, paragraph 5-13, he acknowledged: 

*	the rights available to him and the effect of waiving said rights
*	he may encounter substantial prejudice in civilian life if a general discharge 
under honorable conditions is issued to him
*	he may be ineligible for many or all benefits as a Veteran under both Federal 
and State laws
*	he may apply to the Army Discharge Review Board or the ABCMR for 
upgrading
   
   i.  On 15 March 2004, the immediate commander-initiated separation action against 
the applicant under the provisions of AR 635-200, paragraph 5-13. The commander 
indicated that this action was based on the applicant being diagnosed with adjustment 
disorders with mixed disturbances of emotion and conduct. The commander 
recommended an honorable discharge.
   
   j.  On 29 March 2004, consistent with the chain of command recommendations, the 
separation authority approved the applicant's separation under the provisions of 
paragraph 5-13, AR 635-200, by reason of personality disorder and directed the 
applicant receive an honorable characterization of service.
   k.  Orders 091-0004, dated 31 March 2004, discharged the applicant from active 
duty with an effective date of 15 April 2004.
   
   l.  On 15 April 2004, he was honorably discharged from active duty. His 
DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he 
completed 8 months and 10 days of active service. He was assigned separation code 
JFK and the narrative reason for separation listed as “Personality Disorder.”
   
   m.  On 20 October 2021, the applicant’s prior DD Form 214 was marked void and a 
new DD Form 214 was issued. Block 18 (Remarks) noted the DD Form 214 was 
administrative reissued per ABCMR proceedings in AR20210008007 with the following 
updates:
   
*	Block 25 (Separation Authority) – AR 635-200, paragraph 5-17
*	Block 26 (Separation Code) – JFV
*	Block 28 (Narrative Reason for Separation) – Condition, Not a Disability

7.  During the processing of ABCMR Docket Number AR20210008007, the IDES 
psychiatrist rendered an advisory opinion in the processing of the case, endorsed by the 
Office of The Surgeon General (OTSG) on 6 October 2021. He opined:

	a.  The applicant was seen for depressive symptoms approximately 3 weeks prior to 
his 22 December 2003 clinical contact for suicidal thoughts. When the applicant was 
seen on 22 December 2003, he was diagnosed with an adjustment disorder with 
Depressed Mood. There is no clinical evidence that the applicant received any profile 
limitations due to any behavior health condition. There is no clinical evidence in the 
records reviewed that the applicant sought or received treatment for any behavioral 
health condition other than an adjustment disorder reactive to familial problems.

	b.  The diagnosis of an adjustment disorder is clinically appropriate to describe the 
applicant’s clinical picture at the time and this condition was acceptable at the time as 
per AR-40-501 Ch. 3-33. There is no clinical evidence of any other stand-alone serious 
behavioral health condition that would have required MEB separation under IDES.

8.  The applicant's service record was void of documentation that shows he was treated 
for an injury or an illness that warranted entry into the Physical Disability Evaluation 
System (PDES). Additionally, there is no indication he underwent a medical evaluation 
board (MEB) or a physical evaluation board (PEB).

9.  By regulation (AR 635-200), action will be taken to separate a Soldier for other 
physical or mental conditions not amounting to disability (AR 635-40) and excluding 
conditions appropriate for the separation processing under paragraph 5-11 or 5-13 that 
potentially interfere with assignment to or performance of duty.

10.  By regulation (AR 635-8), the DD Form 214 is a summary of the Soldier's most 
recent period of continuous active duty. It provides a brief, clear-cut record of all current 
active, prior active, and prior inactive duty service at the time of release from active 
duty, retirement, or discharge. The information entered thereon reflects the conditions 
as they existed at the time of separation. Block 28 (Narrative Reason for Separation) is 
based on regulatory or other authority and can checked against the cross reference in 
AR 635-5-1 (Separation Program Designator (SPD) Codes).

11.  By regulation (AR 635-5-1), separation program designator (SPD) codes are three-
character alphabetic combinations that identify reasons for, and types of, separation 
from active duty. The narrative reason for the separation will be entered in block 28 of 
the DD Form 214 exactly as listed in tables 2-2 and 2-3. Table 2-3 lists for SPD code 
“JFV” the narrative reason as “Condition, Not a Disability,” by regulatory authority AR 
635-200, paragraph 5-17.

12. By regulation (AR 40-501), medical evaluation of certain enlisted military 
occupational specialties and officer duty assignments in terms of medical conditions and 
physical defects are causes for rejection or medical unfitness for these specialized 
duties.  If the profile is permanent the profiling officer must assess if the Soldier meets 
retention standards. Those Soldiers on active duty who do not meet retention standards 
must be referred to a medical evaluation board. Once a determination of physical 
unfitness is made, disabilities are rated using the VA schedule of disability rating.  

13.  By regulation (AR 635-40), 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. 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:

	a. 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.

	b. 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.

14.  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.

15.  Title 38, United States 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.  

16.  Title 38, Code of Federal Regulations, 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/her 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.

17.  In the adjudication of this case, a medical advisory opinion was obtained from the 
Army Review Boards Agency (ARBA) clinical psychologist. The opinion states:

a.  References.

*	Diagnostic and Statistical Manual of Mental Disorders-5th Edition
*	AR 40-501, Standards of Medical Fitness, RAR003, 04 Aug 2011
*	AR 635-200, Active Duty Enlisted Administrative Separations, 06 Sep 2011
*	Memorandum, Secretary of Defense, 3 Sep 2014, Supplemental Guidance to 
Military Boards for Correction of Military/Naval Records Considering 
Discharge Upgrade Requests by Veterans Claiming Post-Traumatic Stress 
Disorder 	
*	Army Directive 2014-28, Requests to Upgrade Discharge by Veterans 
Claiming Post-Traumatic Stress Disorder, 3 Nov 2014

   b.  The case comes before the Board on remand from the United States Court of 
Federal Claims (The Court). The Court requested remand to the ABCMR and noted it 
"shall review, at a minimum, the following: whether plaintiff was entitled to disability 
retirement processing, including a referral to a MEB and/or a PEB, the effect of the 
Army's failure to afford plaintiff ample opportunity to overcome stated deficiencies and 
the reasons for plaintiffs discharge as inconsistent with plaintiffs medical and personnel 
records; that plaintiff did not receive proper counseling or an opportunity to cure any 
medical identified issues in his records; and the propriety of plaintiffs determination of 
fitness, in accordance with Army procedures; whether or not plaintiff should have been 
medically retired based on plaintiffs diagnosis of PTSD in accordance with the 
September 3, 2014 Secretary Hagel Memorandum directing military boards to grant 
liberal consideration in PTSD diagnoses cases, as well as any other relevant issues in 
plaintiffs case or in plaintiffs records.” And, the court observed “in the August 17, 2022, 
Opinion the limitations and weaknesses of the earlier ABCMR decisions which did not 
evidence full consideration of [the applicant’s] medical and service records."

   c.  The ABMR Record of Proceedings (ROP) and supporting documents were fully 
reviewed and incorporated into the current advisory. As such, not all aspects of the 
ROP will be repeated herein. The ROP for the current case contains records and data 
summarized in previous consideration by ABCMR in Docket Number AR20170010064 
on 6 May 2019 and Docket Number AR20210008007 on 14 September 2021.

   d.  The Army discharged the applicant on 15 April 2004; prior to discharge the 
applicant was not evaluated by an MEB or PEB. On 6 May 2019, the ABCMR denied 
application to be medically retired, concluding that relief was not warranted. “Based on 
the medical advisory finding that he (sic) applicant met retention standards, the Board 
concluded that there was insufficient evidence to justify making a change to the 
narrative reason for separation.”

   e.  Counsel for the applicant asserts, in essence, that applicant was unfit for service 
due to PTSD at the time of discharge and should have been processed by an 
MEB/PEB; that the Army erroneously diagnosed him with adjustment disorder and/or 
personality disorder, neither of which are subject to review by a PEB; that the ABCMR 
prior decision both disregarded evidence that the applicant suffered from PTSD at the 
time of discharge and failed to address conflicting medical evidence. Multiple arguments 
asserted to support such claims are summarized in the ROP. 

   f.  On 6 October 2021 the Office of the Surgeon General issued a decision opining 
that the diagnosis of adjustment disorder was appropriate, and on 14 October 2021 the 
Board determined that the applicant did not require disability processing at the time of 
separation. Subsequently, the Court found that the Army failed to follow its own 
established procedures and that the Board did not consider available evidence 
associated with the applicant’s separation and medical retention standard 
determination. Counsel asserts various other inconsistencies and misapplication of 
guidelines as summarized in the ROP and again will not be fully restated.

   g.  The applicant served on active duty in the USMC from 12 November 1998 to 11 
November 2002 and enlisted in the Regular Army on 6 August 2003. Report of Medical 
Examination for the purpose of enlistment was unremarkable for psychiatric concerns 
and he was found qualified for service. The record shows that on 21 December 2003 he 
was referred to the emergency room due to suicidal threats and violent tendencies; he 
was deemed not an immediate risk and released for next-day evaluation.  On 22 
December 2003, a psychologist noted a diagnostic impression of Adjustment Disorder 
with Depressed Mood and nicotine dependence, and applicant was recommended for 
discharge under Chapter 5-17, AR 635-200.

   h.  Ultimately on 29 March 2004 the separation authority approved the applicant’s 
separation under paragraph 5-13, AR 635-200 by reason of personality disorder and 
directed applicant receive an honorable characterization of service. Applicant was 
honorably discharged from active duty on 15 April 2004, with separation code JFK and 
narrative reason for separation listed as personality disorder. On 20 October 2021 
following ABCMR proceedings (Docket Number AR20210008007), an updated DD214 
was issued indicating separation authority AR 635-200 paragraph 5-17, separation 
code: JFV, narrative reason: condition, not a disability.

   i.	During processing of ABCMR Docket Number AR20210008007, an IDES 
psychiatrist rendered an advisory opinion, endorsed by the Office of the Surgeon 
General. The opine noted, in summary, that the diagnosis of adjustment disorder 
(reactive to familial problems) was clinically appropriate to describe the clinical picture at 
the time and was acceptable per AR 40-501 Ch. 3-33.

   j.  Relevant to the current case, applicant asserts exposure to at least two traumatic 
events while serving in the USMC from November 1998 until November 2002, to include 
a significant motor vehicle accident in on 16 October 2000 which reportedly resulted in 
the death of two civilians in the other vehicle; and combat action during a tour in 
Afghanistan which included involvement in a direct small arms fight with Taliban with 
fear of losing life and close proximity to an IED, suicide bombing, and other insurgent 
attacks. Available evidence indicates applicant was evaluated in August 2002 at Cherry 
Point Naval Hospital. Advisor reviewed documents to include 28 August 2002 
evaluation by psychologist following an ER visit on 27 August; evaluation was due 
primarily to agitation and aggressive ideation. Evaluation of 28 August notes since 
return from deployment in April of that year, applicant reported experience of labile 
mood, aggressive/assaultive ideation, difficulty controlling anger, reduced 
sleep/appetite, “flashbacks” of combat, and intrusive recollections among other 
symptoms. Psychologist posited “mild depressive and anxious symptoms due to PD 
(personality disorder) traits interacting with perceived stressful environment. Symptoms 
will likely remit once patient removes self from USMC.” Diagnoses were Occupational 
Problem and Adjustment Disorder with Mixed Anxiety and Depressed Mood, with 
borderline personality traits noted. Psychotherapy was recommended but 
documentation indicates “pt (patient) refuses.”

   k.  Legal decision filed 17 August 2022 (Case No. 21-384C) is found in the 
supporting documents and contains a history of applicant’s asserted trauma, associated 
behavioral concerns, and medical/mental health encounters over time and will not be 
fully recounted. Service connection for PTSD by the Department of Veteran’s Affairs is 
noted and appreciated. Applicant asserts that even with the corrected basis of 
separation (AR 635-200 Chapter 5-17, “condition, not a disability”), the Army still failed 
to follow appropriate procedures to include giving ample time to overcome deficiencies 
by separating him less than 6 months after the onset of symptoms.

   l.  Available Army active service medical records have been cited in the ROP and 
various legal documents in support of this case. Relevant documentation found in the 
ABCMR supporting documents file are highlighted below:

      (1)	 Report of Medical Examination (for the purpose of enlistment) dated 1 June 
2003 (although signature block indicates 1 May 2003) found applicant medically 
qualified for service. There is no indication he reported psychiatric concerns. Box 40 
(Psychiatric) was checked as “normal.” There is a handwritten statement in Box 77 
referencing Box 40 stating “prior service and incomplete DD214” but it is unclear how 
this may relate to psychiatric functioning (and no clinical information was described). 
There is no evidence a waiver was necessary.
	
      (2)	 Mental Status Evaluation dated 22 December 2003 (Hurovitz) has been cited 
and described in the ROP. In essence it contains a diagnosis of Adjustment Disorder 
with Depressed Mood and Nicotine Dependence and recommends expedited 
separation via AR 635-200 Chapter 5-17. Of note, the “Meets Retention Requirements 
of AR 40-501” box was not checked, and recommendations included “full access to 
mental health should be permitted for the duration of his stay in the Army.” The 
document does not contain any relevant narrative data associated with whether trauma 
history and/or PTSD symptoms were described by the applicant and/or 
comprehensively addressed in the evaluation.

      (3)	 Statement of Medical Examination and Duty Status indicates service member 
was evaluated 27 December 2003 for depression associated with family problems, 
which he had been experiencing for approximately 1 month (date of onset cited as 27 
November 2003).

      (4)	 Report of Medical Assessment signed by applicant 29 December 2003 
(Section I, completed by service member) indicates “no” to multiple domains including 
presence of any conditions which limit ability to work in MOS or require 
geographic/assignment limitations. He does note some concerns associated with back 
pain. Report of Medical History dated 29 December 2003 indicates applicant had “been 
evaluated or treated for a mental condition” and “talked to doctors about stress” 
although he responded “no” to items addressing nervous trouble/anxiety or panic 
attacks and specific symptomatic issues to include trouble sleeping, depression or 
excessive worry, attempted suicide. Report of Medical Examination noted applicant was 
qualified for service and resulted in PULHES codes of 1 on all domains.

   m.  Available Army medical records were consulted through review of AHLTA, the 
Army electronic medical record. No specific encounters were returned, given the period 
of service for the applicant lacking overlap with the implementation of AHLTA. However, 
a consult from Emergency Room 121st Hospital was in the record, which was 
administratively closed on 27 January 2004 following a 30-day period since it was 
ordered, without a related appointment; consult indicated “former marine with time in 
Afghanistan who was separated as a result of same – hx (history) suggests possible 
PTSD co (complains of) seeing lights in night sky…admits to worsening depression 
seen last week in 121 Psych…and is apparently being recommended to his command 
for separation. Depression now worsening, please evaluate for need to consider 
antidepressants.” There is no evidence of a follow-up evaluation associated with this 
consult. The Health Artifact and Image Management Solution (HAIMS) application was 
searched but returned no documents for the applicant.

n.  Two VA Compensation and Pension Evaluations were available for review:

   	(1)  Exam dated 14 November 2009 describes combat-related stressors in 
Afghanistan beginning upon arrival in 2001, especially related to events of 15 February 
2002. The evaluation notes “after coming back from the war claimant started to have 
anxiety, insomnia, irritability, a lot of anger and isolation and could not handle other 
people around him and this has continued up to the present day.” He claims symptoms 
began in 2001. Two psychiatric hospitalizations were reported in 2007. He experienced 
legal problems following his military service to include 2 years incarcerated for assault 
and battery in 2005-2006. Stressors identified as coming under direct enemy fire; 
fearing for life on a daily basis; witnessing people being killed; fearful of “friendly” aerial 
bombardments following a reported near miss (approximately 500 feet from his vehicle).  
He also described vehicle accident in which a car hit his HMMWV with two fatalities.  
The evaluator reviewed available medical records to include US Navy Medical Record 
dated 10-17-2000 apparently associated with the MVA with fatalities described above. 
Applicant was diagnosed with PTSD on Axis I, diagnosis deferred on Axis II.

   	(2)  Exam dated 19 January 2011 again describes combat stressors associated 
with deployment to Afghanistan beginning in 2001 to include claimant witnessing people 
being killed or injured; exposure to snipers and mortars; being fearful of being killed or 
wounded himself; and problems with insomnia, nightmares, anxiety, irritability, anger, 
flashbacks, isolation after return from combat “which has continued on and off up to the 
present time.” Symptoms reportedly began in 2001 as a result of active-duty Marine 
service. After coming back from the war, he “had many physical altercations with people 
which he then had to be taken to court and then jail.” The evaluation cites relevant 
medical records reviewed in the course of the evaluation, and again made a diagnosis 
of PTSD on Axis I and diagnosis deferred on Axis II. Prognosis was noted to be “highly 
guarded.”

   o.  VA medical records were reviewed through the Joint Longitudinal Viewer (JLV) 
application. Applicant is currently listed as 70% service connected for PTSD. Relevant 
(representative but not exhaustive) records include:
	
   	(1)  PCT (PTSD Clinical Team) Consult dated 2 July 2009 references “getting 
shot at” while in Afghanistan in February 2002, with vivid, persistent memories; 
avoidance; anger; and hypervigilance among other concerns.  Evaluation references 
two prior psychiatric hospitalizations (although one appears to be an emergency room 
hold for observation) in April and May 2007. He reported traumatic military stressors to 
include Humvee accident in Arizona with death of two civilians and serious injury to an 
NCO; a prior motor vehicle accident in during a convoy; and combat action in 
Afghanistan to include taking fire from Taliban on February 15, 2002.  The evaluation 
resulted in a diagnosis of PTSD, Chronic and rule-out Mood Disorder Not Otherwise 
Specified (NOS).  

   	(2)  PCT Medication Management Note (23 July 2009), generally recounts the 
same history and functioning as above and again notes a diagnosis of PTSD and rule-
out Mood Disorder NOS.

   	(3)  PCT Consult dated 7 January 2015 notes at the time being 70% service 
connected for PTSD and again resulted in diagnosis of PTSD, Chronic.

      (4)	 PCT Medication Intake dated 25 March 2015 indicates “longstanding PTSD 
symptoms of recurrent nightmares, flashbacks, intrusive thoughts, social withdrawal, 
depressed mood, generalized anxiety, difficulty concentrating, poor attention span, 
insomnia, irritability, and nightsweats” with improvement in symptoms “especially anger 
and impulsivity as long as he is on medications.” Evaluation resulted in diagnosis of 
“Chronic Military related PTSD.”

      (5)	 MHC Consult/Initial Treatment Plan (22 March 2019) again references 
traumatic history of being shot at in Afghanistan with ongoing nightmares, avoidance of 
trauma-related stimuli, “negative thoughts and feelings that began after the trauma,” 
“trauma-related arousal and reactivity that began after the trauma,” irritability, anger, 
hypervigilance, exaggerated startle, and trouble sleeping among other concerns. 

      (6)	 Psychiatry Attending Note of 6 October 2022 (most recent mental health 
contact at time of this review) references chronic PTSD (70% service connected); major 
depressive disorder, recurrent, moderate; and cannabis use disorder.

   p.  The ARBA medical advisor (psychologist) has reviewed all available records 
associated with this case to those included in available electronic databases, available 
hard copy medical records, supporting documents in the case file to include past 
reviews of this case, and ARBA Record of Proceedings. The advisor 
concludes/recommends the following: 
   
      (1)	  The ABCMR has previously corrected an error associated with discharge 
which now reflects condition, not a disability (adjustment disorder) under AR 635-200 
Chapter 5-17, rather than personality disorder under Chapter 5-13. There is no 
evidence applicant was ever diagnosed with a personality disorder.

      (2)	 Applicant had multiple opportunities to assert that he was experiencing 
PTSD-spectrum symptoms associated with his service in the USMC. For example, his 
enlistment physical from May/June 2003 and his separation physical from January 2004 
both suggest he may have denied and/or minimized any impairment associated with 
psychiatric functioning and/or post-traumatic symptoms, although on the latter he did 
appear to endorse history of medical consultation associated with stress.

      (3)	 Veteran has a well-established post-discharge diagnosis of PTSD with 
service connection for same. However, the VA conducts evaluations based on different 
standards and regulations. VA examinations can confirm diagnoses and determine if 
medical conditions occurred while on active duty; however, they do not address whether 
a medical condition met or failed Army retention criteria or if it was a ratable condition 
during the period of service.

      (4)  Under current liberal consideration guidelines, the advisor finds that there is 
evidence indicative of possible PTSD during applicant’s period of Army service, 
consistent with the position of a prior medical advisory (cited for example in ROP dated 
14 September 2021) which concluded, in essence, applicant’s functioning met the 
definition of PTSD per the Liberal Guidance Memorandum dated 3 September 2014.  
This does not suggest he failed to meet medical retention standards, nor does it indicate 
a prior error was made or the Army was malicious in its handling of applicant’s 
separation; rather such functioning can be construed based on current understanding 
of, and guidelines related to, PTSD that have evolved over time. Evidence available at 
the time of this advisory indicates applicant has a convincing history of trauma 
associated with his (pre-Army) USMC service. Evidence from his Marine records and 
(admittedly limited information from) Army medical records references symptoms that 
could reasonably be suggestive of PTSD at the time of and prior to his Army service.  
However, as noted in prior advisory, such symptoms may also be consistent with other 
psychiatric disorders. Unfortunately, the full evaluation conducted by the psychologist 
recommending the discharge via Chapter 5-17 (22 December 2003) is not available for 
review (eg, via a hard-copy SF600 in the medical record); therefore, the advisor cannot 
opine on whether the applicant disclosed his history of trauma (a necessary disclosure 
to make a diagnosis of PTSD), whether the evaluating psychologist was aware of 
applicant’s mental health encounter(s) and diagnosis while still serving as a US Marine, 
or whether other potential diagnoses were appropriately ruled out prior to making the 
adjustment disorder diagnosis. Psychiatric diagnoses in such contexts are only as 
reliable and valid as the information available to the evaluating professional, which 
includes self-reported histories provided by the individual.

      (5)  Based on the application of more recent standards that were not in place at 
the time of applicant’s service, the applicant would be entitled to a thorough screening 
for issues to include PTSD, TBI, and sexual assault associated with a mental status 
evaluation in the context of administrative separation. There is no evidence available to 
this advisor that confirms or disconfirms whether applicant was afforded a reasonably 
thorough evaluation to fully consider the presence of PTSD at the time of the December 
2003 psychological evaluation described above; however, there is also no evidence that 
applicant opted into ongoing care during his remaining period of service. Such care is 
ultimately the service member’s responsibility and would have had clinical benefit for his 
functioning, perhaps more fully informed the diagnosis, and ultimately assisted in the 
determination whether a referral to the PEB/MEB was warranted. The initial 
recommendation for administrative separation via AR 635-200 would not have 
precluded referral for medical processing if relevant clinical information had come to 
light in the interim prior to his eventual discharge.
      
      (6)  The presence of the full symptom criteria for a diagnosis of PTSD per DSM 
standards during applicant’s service is neither clearly present nor clearly excluded, 
although it remains important to note that even a presumptive diagnosis of PTSD would 
not have categorically resulted medical separation processing. There is compelling 
evidence that he has continued to have difficulty with symptoms of PTSD over time 
since his discharge, but this does not necessarily reflect severity and nature of 
symptoms at discharge. A thorough review of available Army medical records reveals a 
dearth of mental health-specific documents, limiting the advisor’s ability to definitively 
opine on fitness for duty under AR 40-501. Typically, however, lack of such information 
(especially in the presence of other data indicating limited concerns, to include his 
enlistment and separation physicals) presumes fitness for duty. Given data associated 
with functioning and symptomatology while serving in the USMC (to include data cited in 
multiple C&P exams) and the apparent absence of such information on his enlistment 
physical, the evidence could be interpreted to suggest incomplete or inadequate 
disclosure of pre-existing concerns upon enlistment into the Army. Although IDES 
Advisory Opinion dated 6 October 2021 concluded based on a record review that 
adjustment disorder diagnosis was clinically appropriate and his condition did not 
warrant consideration of an MEB, out of an abundance of caution the Board should 
consider referral to IDES for a full evaluation to address such issues retrospectively and 
determine if applicant had a pre-existing condition and/or if medical separation is 
warranted.

18.  The applicant was sent a copy of the advisory opinion and given an opportunity to 
submit comments. On 24 January 2023, Counsel provided the following response.
   a.  As you are aware, this case has been ongoing for nearly four years. As such, for 
the reasons stated in [the applicant’s] November 11, 2022 Memorandum in Support of 
Application Upon Second Remand (the “Memorandum”), and the record in this matter, 
[the applicant] respectfully requests that, without further delay, the ABCMR correct his 
military records to reflect a medical retirement under 10 U.S.C. § 1201 and AR 635-40 
for being unfit because of physical disability due to PTSD with at least a 50% disability 
rating. (See 11/11/22 Memorandum.) In the alternative, however, in accordance with the 
Advisory Opinion’s conclusion and recommendation, the Board should refer [the 
applicant] to the IDES for a full evaluation to determine if he had a pre-existing 
condition, and/or if medical separation/retirement is warranted. Though the Advisor 
properly concludes that [the applicant] should be referred to the IDES, certain aspects 
of the Advisory Opinion nonetheless bear addressing. As the factual background of this 
case is delineated in detail both the Advisory Opinion and Memorandum, they are not 
repeated here.
   
   b.	[The applicant] exhibited and continues to exhibit symptoms of PTSD caused by 
his service. The Advisor acknowledges “there is evidence indicative of possible PTSD 
during [the applicant’s] period of service,” and that during [the applicant’s] separation 
physical, obtained in connection with his discharge from the Army in 2004, [the 
applicant] “appear[ed] to endorse history of medical consultation associated with 
stress.” (See Advisory Opinion at 5-6). However, at the same time, the Advisor 
seemingly attempts to put the impetus on [the applicant] to have obtained a more clear 
PTSD diagnosis, such that his entitlement to benefits would be more clear—i.e. the 
Advisor opines that [the applicant] “had multiple opportunities to assert that he was 
experiencing PTSD-spectrum symptoms associated with his service in the USMC” 
notes “there is no evidence [he] opted into ongoing care”; and that “[s]uch care is 
ultimately the service member’s responsibility and would have … perhaps more fully 
informed the diagnosis.” (See id.) The Advisor fails to recognize that [the applicant’s] 
deployment to Afghanistan while in the Marine Corps was included in his military 
records/service history which was always available for review by his Army medical 
providers. The Advisor notes even “a presumptive diagnosis of PTSD would not have 
categorically resulted in medical separation processing.” And, though there is 
compelling evidence [the applicant] suffers from PTSD, the Advisor opines “this does 
not necessarily reflect severity and nature of symptoms at discharge.” Id. at 6-7. To the 
contrary, though, [the applicant] exhibited clear symptoms of debilitating PTSD during 
his service in the USMC and Army such that the Army discharged him because of his 
PTSD symptoms. The Advisor ignores the [applicant] was in fact separated from the 
Army for his mental health condition clearly establishing a level of severity in his 
symptoms that prompted this action in the first place. Those symptoms are evidenced 
throughout his medical records. And, those symptoms are the same symptoms that led 
to his PTSD diagnosis after service that was rated as 50% disabling.

   c.	Service in the USMC. 

      (1)	 After witnessing the two fatalities that occurred in the motor vehicle accident 
in which he was involved while serving in the USMC in and after being exposed to 
trauma while he was on tour in Afghanistan, [the applicant] began to experience 
problems with his performance and ability to perform his duties in the USMC.

      (2)	 On August 27, 2002, [the applicant] was seen at Cherry Point Naval Hospital 
exhibiting agitation and “intermittent thoughts of harming others who have made him 
mad.” “Over the past 4 months he has had thoughts of killing people who have made 
him angry by shooting them but has always been able to control these thoughts by 
talking to his girlfriend/roommate…He feels [symptoms] related to his recent 
deployment to Afghanistan where he spent some time in foxholes.” See [applicant] File, 
p. 434; Advisory Opinion at 2. The Assessment/Plan from that visit ruled out 
Depression, PTSD, and Homicidal Ideation (“HI”). [Applicant]File, p. 438.

      (3)	 On August 28, 2002, [the applicant] underwent a psychiatric evaluation, 
where he reported as follows:

Since returning from deployment (April 19th) reports labile mood, thoughts of 
‘hurting and shooting people,’ difficulty controlling angry behav[ior] toward well-
liked friends and [girlfriend], [decrease] sleep/appetite, ‘flashbacks’ of combat, 
anergia, intrusive recollections, and feeling like fighting. Arguing more [with 
girlfriend] due to ‘mood swings’ ([patient’s]. Lifelong difficulty trusting others, 
holding grudges, few friends, irritability, reckless behav[ior] and intense anger.

[Applicant]File, p. 439; Advisory Opinion, at 3. [The applicant] was diagnosed with 
occupational problem[s] and adjustment disorder with mixed anxious/depressed mood 
on Axis I. [Applicant] File, p. 441.

      (4)	 [The applicant’s] behavior after deployment was in stark contrast to his 
behavior before deployment. SSG, who served with [the applicant] from 1999-2003, 
stated that [the applicant] was “a different person” when he returned home from 
Afghanistan in the spring of 2002. [Applicant]File, SSG stated that “[the applicant] was 
much more secluded and reserved. He kept to himself most of the time…It was defiantly 
[sic] not the same.” Id. served with [the applicant] from February 1999 to June 2002 and 
noticed that after returning home, [the applicant] began acting differently, “[The 
applicant] never got into any trouble before, but everyone noticed that his attitude 
became aggressive, and he was belligerent with his fellow Marines and leaders…his 
attitude was different.” [Applicant] File, p. 164.

      (5)	 In November 2002, [the applicant] separated from the USMC after 
completion of his term of service.

   d.	Service in the Army. 

      (1)	 Thereafter, during his service in the Army, on November 27, 2003, [the 
applicant] was seen at the 121st General Hospital “for depression that he had been 
suffering from for a month due to family problems. No suicidal thoughts noted.” 
[Applicant]File, p. 451. A simple review of [the applicant’s] medical file and history would 
have uncovered the medical records from the USMC which related [the applicant’s 
mental health symptoms to his deployment to Afghanistan. The examiner noted the 
nature of the problem was an onset as a result of being in the line of duty. Id.; see also 
Advisory Opinion, at 3. On December 22, 2003, [the applicant’s] commander, CPT 
stated:

On December 21, 2003, I was notified around 1600 hours that [the 
applicant]…had made suicide threats that morning…the on-call hospital 
psychiatrist deemed that [the applicant] was not an immediate threat to himself or 
other…The results of [the applicant’s] psychiatric appointment were a 
recommendation for [the applicant] to be chaptered out of the Army under the 
provision of AR 635-200, Chapter 5-17 (“[o]ther designated physical or mental 
conditions.”).


      (2)	 On December 22, 2003, [the applicant] received developmental counseling 
for his “[v]iolent tendencies,” from SSG . Before meeting with SSG, [the applicant] told 
Chaplain  that “[he was] going to do something stupid.” [The applicant] thereafter told 
SSG that he “can’t deal with it.” [Applicant]R C-File, p. 269. Also on December 22, 2003, 
[the applicant] underwent a Mental Status Evaluation by CPT , Psychology Doctor, 
where he was diagnosed with Adjustment Disorder with Depressed Mood and Nicotine 
Dependence on Axis I. [Applicant]File, p. 271. CPT  also stated:

the disorders are so severe that the [S]oldier’s ability to function effectively in the 
military environment is significantly impaired. This problem is long standing and 
not treatable in the context of military service. It is the opinion of the examiner 
that this member has no potential to meet mobilization requirements, clearly has 
no potential for useful service under conditions of full mobilization, and that 
discharge from the Army under Chapter 5-17 would be in the best interest of both 
the individual and the Army. Although this individual is not actively suicidal or 
homicidal, the potential exists that this individual may deteriorate to a suicidal or 
homicidal state.

Id.

      (3)	 On December 29, 2003, [the applicant] underwent a physical examination for 
his separation. See [Applicant]File, pp. 276, 278. His psychiatric profile was not 
evaluated, and the examiner noted “none” in summary of defects and diagnoses. Id.

e.	Post Discharge PTSD Symptoms and Diagnosis.

      (1)	 Despite the conflicting medical reports from [the applicant’s] military service, 
as the Advisory Opinion acknowledges, repeated determinations from the VA show that 
[the applicant] suffered and continues to suffer from PTSD caused by his service. See 
Advisory Opinion at 4-5. In fact, [the applicant] was diagnosed with PTSD based on the 
same constellation of symptoms that he experienced while in the Army and USMC.

      (2)	 On April 18, 2007, [the applicant] was hospitalized due to possible suicide 
risk after holding “a knife to his chest” after a fight with his girlfriend. [Applicant]File, p. 
159. [The applicant] was discharged on April 20, 2007, and the final diagnosis on Axis I 
was depressive disorder NOS, rule out dysthymia, rule out major depression, rule out 
PTSD and Axis II was deferred. [Applicant]File, p. 162.

      (3)	 On June 5, 2009, at a mental health consultation at Hampton VA Medical 
Center, [the applicant] was evaluated and diagnosed with PTSD. [Applicant]File, p. 149. 
[The applicant] reported the following symptoms:

He recalls being in Afghanistan Feb. 2002 and getting shot at around 2:30am. He 
felt fearful and angry. He indicates that he has vivid, persistent memories of this 
event. He tends to avoid being around others. He has outbursts of anger and 
difficulty concentrating. He jumps very easily if he hears a loud noise or sees a 
sudden movement. He used to sleep with a loaded gun…He feels bad about 
himself because he is unemployed and is incapable of providing for his children. 
He sleeps about 5 hours per night. Appetite is excessive. He has gained 20 
pounds over the past 2 months. He has not considered suicide as an option 
since 2007 because of his children.

[Applicant]File, p. 148; see also Advisory Opinion, at 5. On December 11, 2009, after 
[the applicant’s] discharge, the VA granted [the applicant] service connection for PTSD 
evaluated at 30 percent disabling, effective May 12, 2009. [Applicant] p. 398. On June 
21, 2011, the VA increased [the applicant’s] PTSD rating to 70 percent effective as of 
May 17, 2010, and granted [the applicant] individual unemployability and Dependents’ 
Educational Assistance, both effective May 17, 2010. 17, 2010. [Applicant]File, p. 384.

      (4)	 On March 25, 2015, a medical provider noted [the applicant] had 
“longstanding PTSD symptoms of recurrent nightmares, flashbacks, intrusive thoughts, 
social withdrawal, depressed mood, generalized anxiety, difficulty concentrating, poor 
attention span, insomnia, irritability, and nightsweats" with improvement in symptoms 
"especially anger and impulsivity as long as he is on medications.” This evaluation 
resulted in diagnosis of “Chronic Military related PTSD.” See Advisory Opinion, at 5.

      (5)	 These symptoms, and others, have continued to be echoed through [the 
applicant’s] subsequent medical records. See id. [The applicant’s] debilitating PTSD 
symptoms, which began while [he] was serving in the military, affect every aspect of his 
life. Anxiety and depression are prevalent in his every day, and he is frequently haunted 
by his service in the line of duty.

f.	Conclusion.

      (1)	 The Hagel Memorandum and other guidance documents provide that 
“[s]pecial consideration will be given to Department of Veterans Affairs (VA) 
determinations which document PTSD or PTSD-related conditions connected to military 
service” and plaintiff received several Department of Veterans Affairs determinations 
granting plaintiff service connection for PTSD, ultimately for 70 percent disabling, 
effective May 17, 2010. See Memorandum from Charles Hagel, Sec’y of Def. to Sec’ys 
of the Mil. Dep’ts (Sept. 3, 2014). Though the Advisory Opinion falls short of 
acknowledging that [the applicant] should have been diagnosed with PTSD, and 
medically retired, it nonetheless clearly finds that “there is evidence indicative of 
possible PTSD during [the applicant’s] period of service,” and that he should be 
referred to an IDES.

      (2)	 [The applicant] respectfully requests that ABCMR correct his military records 
to reflect a medical retirement under 10 U.S.C. § 1201 and AR 635-40 for being unfit 
because of physical disability due to PTSD with at least a 50% disability rating. (See 
11/11/22 Memorandum.) In the alternative, he implores the Board to—in accordance 
with the Advisory Opinion’s conclusion and recommendation—refer him to an IDES for 
a full evaluation to determine if he had a pre-existing condition, and/or if medical 
separation/retirement is warranted.


BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that partial relief was warranted. The Board 
carefully considered the applicant's contentions, record of service, and the court’s 
opinion in accordance with governing law, policy, and regulation. The Board noted the 
ARBA medical advisor’s finding that there is evidence indicative of possible PTSD 
during the applicant’s period of service. Upon review of the applicant’s petition, available 
military records, and ARBA medical reviews, and applying liberal consideration, the 
Board determined a preponderance of evidence supports a finding the applicant had 
PTSD during service. The Board further found a preponderance of evidence reflects the 
applicant’s PTSD was at a medical retention decision point (MRDP) during service 
warranting referral to DES – a Medical Evaluation Board (MEB) and, for any conditions 
determined to fail retention standards, a Physical Evaluation Board (PEB) – for a full 
evaluation of whether the applicant had a pre-existing condition and / or if medical 
separation or retirement is warranted. As such, the Board found sufficient evidence 
reflects the applicant should have been referred for medical processing prior to being 
administratively separated via AR 635-200. 

2. However, the Board was unable to determine, based on the current evidence of 
record, whether the applicant had any unfitting conditions at service separation 
warranting a disability separation or retirement, and if so, at what percentage. While a 
preponderance of evidence reflects the applicant had PTSD during service, a diagnosis 
of PTSD does not, in and of itself, mandate or result in an automatic disability 
separation or retirement. Rather only those conditions that render a member unfit to 
perform military duties warrants the member be medically separated or retired.  

3.  The Board further determined the applicant’s records were absent award of the 
Korea Defense Service Medal (KDSM) for his period of service while stationed in Korea.  
In addition, the Board noted the applicant’s U.S. Marine Corps DD Form 214 did not 
reflect his deployment periods or awards. Because this is not an Army record, the Board 
determined this was outside its purview to correct. However, the Board noted the 
applicant may wish to apply to the Board for Correction of Naval Records if he believes 
there is an error or injustice relative to his USMC DD Form 214. 


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


?
BOARD DETERMINATION/RECOMMENDATION:

1. The Board determined that the evidence presented was sufficient to warrant a 
recommendation for partial relief.  As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected by directing 
the applicant be entered into the Disability Evaluation System (DES) and a Medical 
Evaluation Board (MEB) convened to determine whether the applicant’s condition(s), to 
include posttraumatic stress disorder (PTSD), met medical retention standards at the 
time of service separation.

     a.  In the event that a formal physical evaluation board (PEB) becomes necessary, 
the individual concerned will be issued invitational travel orders to prepare for and 
participate in consideration of her case by a formal PEB.  All required reviews and 
approvals will be made subsequent to completion of the formal PEB.

     b.  Should a determination be made that the applicant should have been separated 
under the DES, these proceedings will serve as the authority to void his administrative 
separation and to issue him the appropriate separation retroactive to his original 
separation date, with entitlement to all back pay and allowances and/or retired pay, less 
any entitlements already received 

2. The Board further recommends the records of the individual concerned be corrected 
by amending the applicant’s DD Form 214 for the period ending 20 October 2021to 
enter in item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons 
Awarded or Authorized) Korea Defense Service Medal (KDSM)

3. The Board further determined the evidence presented is insufficient to warrant a
portion of the requested relief.  As a result, the Board recommends denial of so much of
the application that pertains to a medical retirement.


		  
I certify that herein is recorded the true and complete record of the proceedings of the 
Army Board for Correction of Military Records in this case.


?
REFERENCES:

1.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets 
forth the basic authority for the separation of enlisted personnel. Chapter 5-17 of the 
regulation states a Soldier may be separated for other physical or mental conditions not 
amounting to disability (AR 635-40) and excluding conditions appropriate for the 
separation processing under paragraph 5-11 or 5-13 that potentially interfere with 
assignment to or performance of duty. Unless the reason for separation requires a 
specific characterization, a Soldier being separated for the convenience of the 
Government will be awarded a character of service of honorable, under honorable 
conditions, or an uncharacterized description of service if in entry-level status.

2.  Army Regulation 635-8 (Separation Processing and Documents), currently in effect, 
states the DD Form 214 is a summary of the Soldier's most recent period of continuous 
active duty. It provides a brief, clear-cut record of all current active, prior active, and 
prior inactive duty service at the time of release from active duty, retirement, or 
discharge. The information entered thereon reflects the conditions as they existed at the 
time of separation. Block 28 (Narrative Reason for Separation) is based on regulatory or 
other authority and can checked against the cross reference in AR 635-5-1 (Separation 
Program Designator (SPD) Codes).

3.  Army Regulation 635-5-1 (Separation Program Designator Codes), provides 
separation program designator (SPD) codes are three-character alphabetic 
combinations that identify reasons for, and types of, separation from active duty. The 
narrative reason for the separation will be entered in block 28 of the DD Form 214 
exactly as listed in Tables 2-2 and 2-3. Table 2-3 lists for SPD code “JFV” the narrative 
reason as “Condition, Not a Disability,” by regulatory authority AR 635-200, paragraph 
5-17.

4.  Title 10, U.S. Code, 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.

5.  Army Regulation 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.

	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.

6.  Army Regulation 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) 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.

7.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides 
that commanders may approve separations under paragraph 5-17 on the basis of other 
physical or mental conditions not amounting to disability (AR 635-40) that potentially 
interfere with assignment to or performance of duty. When a commander determines 
that a Soldier has a physical or mental condition that potentially interferes with 
assignment to or performance of duty, the commander will refer the Soldier for a 
medical examination and/or mental status evaluation in accordance with AR 40-501. 
Command-directed mental status evaluations will comply with paragraph 1-32e. A 
recommendation for separation must be supported by documentation confirming the 
existence of the physical or mental condition. Separation processing may not be 
initiated under paragraph 5-17 until the Soldier has been counseled formally concerning 
the deficiencies and has been afforded ample opportunity to overcome those 
deficiencies as reflected in appropriate counseling or personnel records in accordance 
with paragraph 1-16.  

8.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a 
member who has at least 20 years of service or a disability rating of at least 30 percent.  
Title 10, U.S. Code, section 1203, provides for the physical disability separation of a 
member who has less than 20 years of service and a disability rating of less than 30 
percent.

9.  Title 38 U.S. Code, 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.

10.  Title 38 U.S. Code, 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.

11.  On 3 September 2014, the Secretary of Defense directed the Service Discharge 
Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records 
(BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical 
considerations, and mitigating factors, when taking action on applications from former 
service members administratively discharged under other than honorable conditions, 
and who have been diagnosed with PTSD by a competent mental health professional 
representing a civilian healthcare provider in order to determine if it would be 
appropriate to upgrade the characterization of the applicant's service.

12.  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; sexual harassment. Boards were directed 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. The guidance 
further describes evidence sources and criteria and requires Boards to consider the 
conditions or experiences presented in evidence as potential mitigation for that 
misconduct which led to the discharge.

13.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency 
determinations. Clemency generally refers to relief specifically granted from a criminal 
sentence. BCM/NRs may grant clemency regardless of the type of court-martial. 
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to other corrections, including changes in a discharge, which may 
be warranted based on equity or relief from injustice. This guidance does not mandate 
relief, but rather provides standards and principles to guide Boards in application of their 
equitable relief authority. In determining whether to grant relief based on equity, 
injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, 
external evidence, sworn testimony, policy changes, relative severity of misconduct, 
mental and behavioral health conditions, official governmental acknowledgement that a 
relevant error or injustice was committed, and uniformity of punishment. Changes to the 
narrative reason for discharge and/or an upgraded character of service granted solely 
on equity, injustice, or clemency grounds normally should not result in separation pay, 
retroactive promotions, and payment of past medical expenses or similar benefits that 
might have been received if the original discharge had been for the revised reason or 
had the upgraded service characterization.  

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20220007334


1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1