IN THE CASE OF: BOARD DATE: 1 March 2023 DOCKET NUMBER: AR20220007514 APPLICANT REQUESTS: Reconsideration of his request to have his Separation Program Designator (SPD) code and Narrative Reason for separation changed to show he was discharged due to medical disability rather than personality disorder. Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 July 2003 to show he: * held the rank/grade of specialist (SPC)/E-4 at the time of his separation * was awarded the Purple Heart * was authorized the Global War on Terrorism Service Ribbon APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * Self-authored statement * Self-authored affidavit (17 pages) * Self-authored recommendation for award of the Purple Heart * General Power of Attorney * Request for Records * DD Form 214 for his service in the U.S. Marine Corps (USMC) * College transcripts * DD Form 214, for the period ending 2 July 2003 * DD Form 215 (Correction to DD Form 214) * Department of Veterans Affairs (DVA) Benefits Summary * Letter from a DVA Staff Psychiatrist * Post-Traumatic Stress Disorder (PTSD) Questionnaire (8 pages) * Medical Visit Summary * Hearing test results FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050009985 on 4 May 2006. 2. The applicant provides a self-authored statement and self-authored affidavit which are available in their entireties for the Board's consideration. He states, in effect: a. His narrative reason for separation should be corrected in the interest of justice considering the Department of Defense's 2009 admission of misdiagnoses of personality disorder in an attempt to conceal PTSD and Traumatic Brain Injury (TBI) in order to curtail benefit eligibility. There is no evidence of him having any malady prior to his combat service in Iraq. He also contends the description of events that led to his separation were totally fabricated in reprisal and an attempt to hide the misconduct of others. His condition of TBI has been diagnosed as chronic traumatic encephalopathy (CTE) and will worsen as time passes. b. He should have been enlisted and separated in the rank of SPC/E-4 based upon his prior service in the USMC and his completion of 66 college credits that culminated in him earning an Associate of Applied Science degree in May 2002. c. He should be awarded the Purple Heart due to him suffering sustained repeated concussive injuries as a result of direct fire and indirect fire from the enemy on 7 April 2003 and 12 April 2003 while serving as an infantryman in Iraq. d. He should be authorized to wear the Global War on Terrorism Service Ribbon based upon his service. 3. The evidence of record shows a portion of the applicant's request was previously granted and he was issued a DD Form 215 that corrected his DD Form 214 for the period ending 2 July 2003 to show, in part, he was authorized the Global War on Terrorism Service Medal and corresponding ribbon. In view of this correction, this portion of the applicant's request will not be addressed further in this Record of Proceedings. 4. The applicant served on active duty in the USMC from 20 May 1998 until 7 April 2000, when he was honorably discharged due to a "Physical Condition not a disability." He was issued a DD Form 214 for this period of honorable service. 5. The applicant underwent a pre-enlistment medical examination on 26 April 2002 and was determined to be fully qualified for enlistment. There was no indication that he reported having a preexisting medical condition at the time. 6. The applicant enlisted in the Regular Army on 3 July 2002, for a period of 3 years in the rank/grade of private first class (PFC)/E-3. His DD Form 1966/1 (Record of Military Processing-Armed Forces of the United States) shows he was enlisting with prior service. His record contains a transcript from Luzerne County Community College, Nanticoke, PA, dated 3 June 2002, that shows he was enrolled in the Social Science program and had completed 66 credit hours of study. Upon completion of initial entry training, he was awarded military occupational specialty 11B (Infantryman) and assigned to Fort Stewart, GA. 7. The applicant underwent a behavioral health evaluation from 18 to 22 May 2003, while in Iraq. The psychologist noted, in part: a. The applicant's Battalion Surgeon referred him for anger outbursts, and significant combat stress with depressive symptoms. The applicant reported that he had extreme anger problems for most of his life. He stated when he got angry, he had difficulty controlling his actions and felt no remorse for anything that happened during an outburst. His anger had recently manifested in an incident where he threatened to beat another Soldier's head in with a shovel then retrieved a shovel and intended to carry out his threat. b. The applicant's combat stress reaction was marked by thoughts of killing or hurting people and things including animals, difficulty sleeping, nightmares, disturbing visual images during the daytime, hypervigilance, exaggerated startle response, increased levels of anxiety, feeling physically and mentally exhausted, and feelings of guilt for harming civilians. c. The applicant's symptoms were related to and exacerbated by a prolonged period, in which he perceived tremendous threat of harm by Iraqi combatants and civilians. During this time, he maintained extremely high levels of physical and mental alertness during both the wartime and peace keeping operations. The evaluation further revealed that his current mental health status placed him at a very high risk for harming other members of his company and Iraqi civilians. d. He was diagnosed with the following in accordance with the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition: * AXIS I: Dysthymic Disorder, Combat Stress Reaction, Severe. Rule out PTSD * AXIS II: Personality disorder not otherwise specified (NOS) with antisocial and narcissistic personality traits * AXIS III: None reported * AXIS IV: Occupational and family stressors e. The applicant was mentally sound, could appreciate any wrongfulness of his conduct and to conform his conduct to the requirements of the law. He had the mental capacity to understand and participate in any administrative proceedings. f. The condition presented by the applicant was not amenable to treatment in a way that would make him an effective Soldier in a garrison or any environment other than a direct combat type mission. It was recommended the applicant be relieved from his current duty and redeployed to Fort Stewart as soon as possible. It was also recommended he be expeditiously separated from the Army in accordance with regulatory guidance. 8. On 29 May 2003, the applicant's immediate commander requested initiation of separation procedures for the applicant under the provisions of Army Regulation 635- 200 (Enlisted Personnel Separations), Chapter 5-13, to complete separation as quickly as possible. 9. On 11 June 2003, the applicant was notified of his immediate commander's intent to initiate actions to separate him under the provisions of Army Regulation 635-200, Chapter 5, based on the events stated in his mental health evaluation. He recommended the applicant receive an honorable characterization of service. 10. On the same date, the applicant acknowledged his right to consult with counsel regarding his separation action and elected to waive that right. He also elected not to complete an Election of Rights memorandum. 11. On 11 June 2003, the applicant's immediate commander recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 5, by reason of personality disorder. As the specific reasons the commander noted, the applicant's mental health diagnosis. 12. On 20 June 2003, the separation authority approved the recommended separation action with an honorable service characterization. 13. Orders and the applicant's DD Form 214 confirm he was discharged on 2 July 2003. He was credited with 1 year of net active service this period. His DD Form 214 contains the following entries in: * Block 4a (Grade, Rate, or Rank) – PFC * Block 4b (Pay Grade) – E-3 * Block 12h (Effective Date of Pay Grade) – 3 July 2002 * Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – He was awarded or authorized the: * Army Good Conduct Medal * National Defense Service Medal * Armed Forces Expeditionary Medal * Army Service Ribbon * Army Lapel Button * Combat Infantryman Badge * Block 24 (Character of Service) – Honorable * Block 25 (Separation Authority) – AR [Army Regulation] 635-200, PARA [paragraph] 5-13 * Block 26 (Separation Code) – JFX * Block 27 (Reentry Code) – 3 * Block 28 (Narrative Reason for Separation) – Personality Disorder 14. A DD Form 215, dated 10 April 2012, shows the applicant's DD Form 214 for the period ending 2 July 2003 was corrected by adding the following to Block 13: * Army Commendation Medal * Iraq Campaign Medal with Two Bronze Service Stars * Global War on Terrorism Service Medal 15. The applicant's record is void of evidence showing that he: * was promoted to the rank/grade of SPC/E-4 * sustained a wound as a result of hostile action * was a victim of reprisal 16. By regulation, in order to award the Purple Heart, it is necessary to establish the Soldier was wounded in action, the wound required treatment by a medical officer, and the treatment record must have been made a matter of official record. 17. The ABCMR considered the applicant's request for a change of his separation code, narrative reason for separation, and medical diagnosis for PTSD on 4 May 2006. The Board determined the overall merits of the case did not demonstrate the existence of a probable error or injustice. His request was denied. 18. In addition to the previously discussed evidence, the applicant provides: a. A self-authored affidavit wherein he provides a detailed account of his time in the Army, particularly during his deployment to Iraq. He states he suffered many head injuries from explosive concussive blasts from mortars, artillery, and rockets and during evasive maneuvers to evade such attacks. He further states he experienced headaches and tinnitus from these injuries but does not discuss seeking or receiving medical treatment for these symptoms at any time during his period of service. b. A self-authored recommendation for award of the Purple Heart as a result of combat injuries sustained while serving as an Automatic Rifleman in support of Operation Iraqi Freedom in Iraq during the period of 7 to 12 April 2003. c. A transcript from Luzerne County Community College, Nanticoke, PA, dated 10 May 2018, that shows he had completed a total of 66 credit hours and an Associate in Science for Social Science degree was conferred on 28 August 2003. d. A DVA benefits summary letter, dated 23 March 2015, that shows the applicant has a service-connected disability rating of 100 percent. e. A letter from a DVA Staff Psychiatrist, dated 16 July 2015, which shows the applicant is service connected for PTSD and his emotional support dog is an important component in managing his symptoms. f. A PTSD Questionnaire, on 1 August 2016 shows he was diagnosed and treated for PTSD; Neurocognitive disorder, mild, with behavioral disturbance, secondary to TBI; and TBI. g. A Medical Visit Summary that shows he was treated on 25 May 2017 and his discharge diagnoses included seizure, PTSD, migraine with aura, and CTE. h. The results of a hearing test performed on 10 March 2020 at the Federal Correction Institution located in 19. Published guidance to the Boards for Correction of Military Records/Naval Records (BCM/NR) clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 20. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR with multiple requests. The medically related requests are the awarding of the Purple Heart for a traumatic brain injury (TBI) and in essence, a referral to the Disability Evaluation System (DES) for PTSD, TBI, and chronic traumatic encephalopathy (CTE). b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of service under consideration shows the former Infantryman (11B) entered the regular Army on 3 July 2002 and received an honorable discharge on 2 July 2003 under the separation authority provided by paragraph 5-13 of AR 635-200, Active Duty Enlisted Administrative Separations (1 November 2000): Separation because of personality disorder. The DD 214 shows the applicant served in Iraq from 23 October 2002 thru 3 June 2003. c. Paragraph 2-8 of AR 600-8-22, Military Awards, lists the criteria for the awarding of the Purple Heart. Paragraph 2b lists the circumstances under which the injury is eligible for a Purple Heart (enemy action, friendly fire, peace keeping, etc.). Paragraph 2e states the wound and medical care requirements for the award: “A wound is defined as an injury to any part of the body from an outside force or agent sustained under one or more of the conditions listed above. A physical lesion is not required, however, the wound for which the award is made must have required treatment by medical personnel and records of medical treatment for wounds or injuries received in action must have been made a matter of official record.” d. Paragraph 2-8f(6) of AR 600-8-22 addresses criteria justifying a mild TBI (mTBI) related Purple Heart: “Concussions (and/or mild traumatic brain injury (mTBI)) caused as a result of enemy-generated explosions that result in either loss of consciousness or restriction from full duty due to persistent signs, symptoms, or clinical finding, or impaired brain function for a period greater than 48 hours from the time of the concussive incident. Refer to paragraph 2–8l for additional information.” e. Paragraph 2-8g of AR 600-8-22 list examples of conditions not justifying a Purple Heart, including paragraph 2-8g(13): “mTBI that does not result in loss of consciousness or restriction from full duty for a period greater than 48 hours due to persistent signs, symptoms, or physical finding of impaired brain function.” f. Clarification of the standards for awarding a Purple Heart for a combat related TBI were provided in Army Directive 2011-07 (Awarding the Purple Heart) issued 29 April 2011. While it makes clear a concussion / mTBI may be eligible for the awarding of a Purple heart, paragraph 3 continues to maintain the eligibility criteria of AR 600-8-22: WHEN RECOMMENDING AND CONSIDERING AWARD OF THE PURPLE HEART, THE CHAIN OF COMMAND WILL ENSURE THE CRITERIA IN PARAGRAPH 2-8 OF REFERENCE 8 IS MET, AND THAT BOTH DIAGNOSTIC AND TREATMENT FACTORS ARE PRESENT AND DOCUMENTED IN THE SOLDIER'S MEDICAL RECORD BY A MEDICAL OFFICER. PARAGRAPH 4C BELOW DEFINES MEDICAL OFFICER. g. Paragraph 4C: “A MEDICAL OFFICER IS DEFINED AS A PHYSICIAN WITH OFFICER RANK.” h. No contemporaneous medical documentation was submitted with the application and there are no encounters in AHLTA. While the applicant may have sustained a TBI while serving in Iraq, there is no evidence he sustained any qualifying wound(s) which required medical evaluation and treatment at the time of the injury. i. As to the applicant’s involuntary separation, paragraph 5-13 of AR 635-200 opens with: “Under the guidance in chapter 1, section II, a soldier may be separated for personality disorder (not amounting to disability (see AR 635–40)) that interferes with assignment or with performance of duty, when so disposed as indicated in a, below.” j. Evidence clearly shows the applicant had a behavioral health condition which amounted to a disability. k. Supporting documentation contains a 22 May 2003 memorandum from an evaluating psychologist with the 3rd Infantry Division in Baghdad, Iraq, to the applicant’s company commander: CPT S., Battalion Surgeon, referred PFC {Applicant} to DMHA {Division Mental Health Activity} for anger outbursts and significant combat stress with depressive symptoms. PFC {Applicant} reported he has had extreme anger problems for most of his life. He stated that when he got angry, he has difficulty controlling his actions and feels no remorse for anything that happens during an outburst. His anger recently manifested in an incident where he threatened to beat another Soldier's head in with a shovel. During the incident, PFC {Applicant} retrieved a shovel and intended to carry out his threat. PFC {Applicant}'s combat stress reaction was marked by thoughts of killing or hurting people and things including animals, difficulty sleeping, nightmares, disturbing visual images during the daytime, hypervigilance, exaggerated startle response, increased levels of anxiety, feeling physically and mentally exhausted, and feelings of guilt for harming civilians. PFC {Applicant}'s symptoms are related to and exacerbated by a prolonged period in which he perceived tremendous threat of harm by Iraqi combatants and civilians. During this time, he maintained extremely high levels of physical and mental alertness during both the wartime and peace keeping operations. The evaluation further revealed that his current mental health status places him at a very high risk for harming other members of his company and Iraqi civilians. Diagnosis AXIS I: Dysthymic Disorder, Combat Stress Reaction, Severe. Rule out Posttraumatic Stress Disorder AXIS II: Personality disorder not otherwise specified (NOS) with antisocial and narcissistic personality traits AXIS III: None reported AXIS IV: Occupational and family stressors … Recommendations: It is recommended that PFC {Applicant} be relieved form his current duty and redeployed to Ft. Stewart as soon as possible. It is also recommended that, to fulfill the need of the military and the needs of the individual Soldier, PFC {Applicant} be expeditiously separated from the Army IAW AR 635-200, Chapter 5-13. l. On 11 June 2003, the applicant's company commander recommended the applicant be separated under paragraph 5-13 of AR 635-200. The recommended action was subsequently approved by the commander of the Troop Command, Fort Stewart and Hunter Army Airfield. m. From an addendum to his March 2005 VA Compensation and Pension Examination: “He was stationed in the Persian Gulf from October 2002 to July 2003, mostly in Baghdad. He was with the 3rd Infantry Division Third Battalion 15th Infantry Regiment B company and also his occupation was 11B dismount infantryman and machine gunner ... He experienced a lot of death. Mr. {Applicant} has vivid recollections of an incident where his company was nearly overrun. His unit was called up in support. As he was arriving on scene, he saw numerous dead bodies and wild dogs eating the Iraqi dead. During the firefight, he saw his sergeant die in front of him. He stated an RPG {rocket propelled grenade} hit the sergeant in the face but did not explode. He stated it ripped the sergeant's jaw off, but he could not assist the sergeant. He begged his squad leader to go get him but was told they had to move on. Mr. {Applicant} also reports he experiences significant feelings of guilt and trauma due to an incident where a car carrying civilians was fired upon. He stated the previous night, a suicide bomber tried to bomb his location. The unit was on high alert. He stated the car was coming towards them when warning shots were fired at the car. The car sped up and kept coming directly towards them. The car was fired upon and it crashed into a wall. Mr. {Applicant} ran to the car to assess the situation. They discovered the car was full of civilians. The daughter was dead. The husband was alive but was burning inside the car. The team was able to pull the wife out of the car. Mr. {Applicant} indicated the husband burned alive in the car. As Mr. {Applicant} was the only individual that understood the language, it was his responsibility to try to comfort the wife. As far as his combat experience while in the Gulf, he was on combat patrols and other very dangerous duty 51+ times. He was under enemy fire including scuds four weeks or more. The percentage of people in his unit that were killed, wounded, or missing in action was between 26 and 50%. He saw someone hit by incoming or outgoing rounds 51 or more times. As far as how often he was in danger of being injured or killed, pinned down, overrun, ambushed he experienced these 51 or more times. He witnessed his best friend killed in Fallujah during a conflict and this also has had a great impact on him ... As mentioned above, Mr. {Applicant} experiences intrusive thoughts in spite of his efforts to avoid thinking about what has occurred. He does not watch the news as these trigger intense memories. He noted he does not watch war movies anymore. He feels estranged from others, especially other college students. He stated he feels emotionally numb and has difficulty experiencing any emotion other than anger. He does not enjoy doing things he previously found enjoyable. Mr. {Applicant} reports he is extremely angry. He states he goes off easily. He has been placed on medication and stated this does help keep him more calm. He has difficulty concentrating. He also reported extreme startled reflex and extreme hypervigilance. n. It is abundantly clear from the above referenced memorandum and VA evaluations the applicant had been exposed to a large number of traumatic events during his Service to the United States. This resulted in the development of severe PTSD to the degree that he was relieved form duty and removed from theater. o. Paragraph 3-33 of AR 40-501, Standards of Medical Fitness (30 September 2002), addresses the medical retention standards for anxiety disorders (e.g., PTSD): The causes for referral to an MEB are as follows: a. Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or b. Persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or c. Persistence or recurrence of symptoms resulting in interference with effective military performance. p. It is clear the applicant failed paragraphs b and c based on the psychologist’s in- theater assessment which resulted in the applicant’s relief from duty, removal from theater, and erroneous and rapid involuntary separation form the Amy. While the applicant may have had a personality disorder, it had not been duty limiting (he had completed basic combat training and advanced individual training) and it was not the reason for the deterioration of his mental health. q. As noted above, paragraph 5-13, separation for a personality disorder is not appropriate when separation is warranted under AR 635–40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990). His mental health condition at the time of his discharge clearly failed medical retention standards. Hence, a 5-13 discharge was inappropriate. r. Review of his records in JLV shows the applicant was granted a service-connected disability rating for PTSD effective 23 December 2004. He has no TBI related service- connected disabilities. s. The applicant clearly had service incurred PTSD which was the cause of his career termination. Paragraph E3.P3.5.1 of Department of Defense Instruction 1332.38 Subject: Physical Disability Evaluation (14 November 1996) states: “The DES compensates disabilities when they cause or contribute to career termination.” t. Paragraph 7-1 of AR 40-400, Patient Administration, states in part: “If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the physical evaluation board liaison officer (PEBLO).” u. Paragraph 2-9c of AR 635-40 identifies the error made by his command: “The unit commander will – c. Refer a soldier to the servicing MTF for medical evaluation when the soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating.” v. It is the strong opinion of the ARBA Medical Advisor that a referral of his case to the Disability Evaluation System is clearly warranted. w. The applicant is likely to be medically retired, and this retirement would make him eligible to receive Combat Related Special Compensation for all his combat related disabilities. x. However, Combat Related Special Compensation (CRSC) is subject to a 6-year statute of limitations (31 U.S.C., Section 3702(b)). In order to receive the full retroactive CRSC entitlement, a claimant must file their CRSC claim within 6 years of any VA rating decision that could potentially make them eligible for CRSC or the date they become entitled to retired pay, whichever is more recent. If a claimant files a claim more than 6 years after initial eligibility, they are restricted to 6 years of any retroactive entitlement. y. It is therefore recommended the Board consider authorizing the applicant to apply for CRSC beyond the 6-year statute of limitations, and if CRSC is granted, receive retroactive payments for this disability and other combat related disabilities he may have incurred IAW Chapter 63, Volume 7B of Department of Defense 7000.14R, Financial Management Regulation - Combat-Related Special Compensation (CSRC). This should also include interest and COLAs. Because one criterium for receiving CRSC is that the Veteran be in a retired status (e.g., length of Service, permanent disability, etc.), this authorization could only be used by the applicant if/when he was retired. z. In addition, because the DD 215 he received in April 2015 is not in iPERMS, it is recommended the applicant’s social security number in block 3 of the DD 215 be corrected to show the first digit is a 2 and not a 3. 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 not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. The Board determined there is no medical record showing the applicant received wounds caused by enemy forces that required treatment by medical personnel. The burden of proof rest on the applicant and the applicant provided no new evidence to support his claim for award of the Purple Heart. The Board agreed there was insufficient evidence that showed the applicant’s name on the casualty listing or notification to his family that he had been wounded. Additionally, the Board found insufficient evidence to support the applicant ever held the rank/grade of specialist (SPC)/E-4 at the time of his separation. However, upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding that a referral of his case to the Disability Evaluation System is clearly warranted. Based on this the Board granted partial relief. 2. The Board determined DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. 3. The Board agreed with the advising official that authorization should be afforded to the applicant to apply for CRSC beyond the 6-year statute of limitations, and if CRSC is granted, receive retroactive payments for this disability and other combat related disabilities he may have incurred IAW Chapter 63, Volume 7B of Department of Defense 7000.14R, Financial Management Regulation - Combat-Related Special Compensation (CSRC). This should also include interest and COLAs. 4. Per the regulatory guidance on awarding the Purple Heart, the applicant must provide or have in his service records substantiating evidence to verify that he was injured, the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. 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 referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES). 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 his 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 IDES, 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 determined that 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 changing his type of discharge without evaluation under the IDES and award of the Purple Heart. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) shows in: a. Paragraph 3-35 (Personality, psychosexual, or factitious disorders; disorders of impulse control not elsewhere classified; control not elsewhere classified; substance use psychoactive disorders), these conditions may render an individual administratively unfit rather than unfit because of physical disability. Interference with performance of effective duty in association with these conditions will be dealt with through appropriate administrative channels; and b. Paragraph 3-36 (Adjustment disorders), situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability but may be the basis for administrative separation if recurrent and causing interference with military duty. 5. Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 1, paragraph 1-16, provides that commanders will ensure that adequate counseling and rehabilitative measures are taken before initiating separation proceedings for personality disorder. The number and frequency of formal counseling sessions are discretionary. b. Chapter 5, paragraph 5-13, provides that Soldiers may be separated for personality disorder not amounting to disability that interferes with assignment or with performance of duty, when so disposed as indicated below. (1) The condition is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier's ability to perform duty. (Exceptions: combat exhaustion and other acute situational maladjustments.) (2) The diagnosis of personality disorder must have been established by a psychiatrist or doctoral level clinical psychologist with necessary and appropriate professional credentials who is privileged to conduct mental health evaluations for the DOD components. It is described in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM–IV). (3) Separation because of personality disorder is authorized only if the diagnosis concludes that the disorder is so severe that the Soldier's ability to function effectively in the military environment is significantly impaired. (4) Separation processing may not be initiated under this paragraph until the Soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. (5) When it has been determined that separation under this paragraph is appropriate, the unit commander will take the actions specified in the notification procedure. (6) The character of service for Soldiers separated under this provision would normally be honorable but would be uncharacterized if the Soldier was in an entry-level status. An uncharacterized discharge is neither favorable nor unfavorable; in the case of Soldiers issued this characterization of service, an insufficient amount of time would have passed to evaluate the Soldier's conduct and performance. 6. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It states that the separation code "JFX" is an appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 5, Paragraph 5-13, by reason of personality disorder. Additionally, the SPD/Reentry Eligibility (RE) Code Cross Reference Table established that RE code "3" was the proper reentry code to assign to Soldiers separated under this authority and for this reason. 7. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service 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. 8. On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 9. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 10. Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. 11. Military Personnel (MILPER) Message Number 11-125, issued by the U.S. Army Human Resources Command, Fort Knox, KY, dated 29 April 2011, informed all members of the Army that the Secretary of the Army had approved Army Directive 2011-07 (Awarding the Purple Heart). The directive provides clarifying guidance to ensure the uniform application of advancements in medical knowledge and treatment protocols when considering recommendations for award of the Purple Heart for concussions (including mild traumatic brain and concussive injuries that do not result in a loss of consciousness). Diagnosis of concussion or mild TBI are examples of signs, symptoms or medical conditions documented by a medical officer or medical professional that meet the standard for award of the Purple Heart. This message does not change the standards for award of the Purple Heart for concussion injuries. This policy is retroactive to 11 September 2001. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007514 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1