IN THE CASE OF: BOARD DATE: 14 March 2023 DOCKET NUMBER: AR20220008168 APPLICANT REQUESTS: disability discharge and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * two DD Forms 149 (Application for Correction of Military Record) * 34 pages of U.S. Army Reserve (USAR) Enlistment Documents, 20 March 2000 – 5 June 2000 * Certificate of Achievement, 5 December 2001 * DA Form 1059 (Service School Academic Evaluation Report), 19 March 2002 * University of New Mexico Operative Report, 17 October 2002 * 20 pages of Master Military Pay Account (MMPA) records * National Council Licensure Examination for Practical Nurses Candidate Report, 28 May 2003 * Department of Veterans Affairs (VA) letter, 18 December 2017 * National Personnel Records Center (NPRC) letter, 12 January 2018 * Affinity Recovery letter, 11 March 2022 * University of New Mexico transcript, 29 March 2022 * 166 pages of University of New Mexico Student Health and Counseling records, dated between 2015 and 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He is requesting the unknown characterization of his discharge be corrected to a medical or honorable discharge for the purposes of personal closure and the ability to possibly receive treatment by the VA medical system and receive a VA home loan. b. He is unable to obtain his service number at this time. He has included copies of all the military personnel records he could obtain with his request for records, but unfortunately did not receive anything from the 2291st Medical Battalion in Albuquerque, NM. He has a hunch that his records may have been obliterated in the fire at the St. Louis Archive center circa 2003. c. After spending 1 year and 10 months on active duty for training, he was promoted to the rank/grade of specialist (SPC)/E-4 and attended drill regularly, as well as attended his 2-week training at William Beaumont Army Medical Center, El Paso, TX, in 2003 after his active duty, maintaining good standing in the 2291st Medical Battalion. He then sustained a traumatic brain injury (TBI) with the placement of three titanium plates and 18 screws. When he went to his last USAR drill in Albuquerque, NM, he was asked to out-process from the unit at that time, but he refused because he was under duress and really thought he could get better quickly. Due to the extent of his injuries, inability to focus his mind and attention, as well as the crippling headaches with loss of vision, when he was asked to process out of his USAR unit he chose not to do so and due to the nature of his injury, he could not think clearly. He attended his last USAR drill under extreme duress, where he participated in a urinalysis for drug and alcohol presence, the result of which was negative for all drugs. In retrospect, he should have out-processed at the unit with the administrative clerk when she asked him to do so, but he really wanted to continue his service in the USAR and advance to further training in order to become an officer in the medical battalion after completing his undergraduate degree. d. Afterward, he returned to the university and eventually dropped out because of his inability to perform even the simplest tasks that were easy for him in the past, prior to the injury, but after the head injury he could not concentrate. He suffered with an inability to focus on complex tasks for many years with vision impairment and grappled with depression and anxiety, causing alcohol dependency. After receiving treatment for his mental ailments, he returned to the university in 2015 and completed a different degree that was less complex than the “pre-med” degree he initially sought. e. He made attempts to contact his prior USAR unit when he returned to New Mexico in 2015, but they had been disbanded and he had no avenue to investigate a way to completely out-process with either a medical or an honorable discharge. He should have out-processed at the time according to the proper protocol, but at the time he could not understand that, due to his severe lack of ability to concentrate the first few years after his injury, which took him many years to overcome. When he tried to reach out to his prior unit, he was unable to find any record of his service, leading to more frustration and confusion. He sent away to obtain his service records and only received his enlistment agreement and no records of anything else to include his discharge from active duty for 1 year and 10 months while attending Military Occupational Specialty training as a 91C [sic 91W (Army Health Care Specialist)] in 2001 at Walter Reed Army Medical Center (WRAMC). f. He is now able to concentrate, but suffers from unimaginable pain in his head from time to time. This pain also caused him to become addicted to opioid pain killers, which he addressed through an inpatient drug and alcohol rehabilitation program this year. He has since been able to manage his anxiety and pain with over the counter (OTC) medication. He does still need medication to manage his post-traumatic stress disorder (PTSD) and anxiety, but the headaches have subsided considerably since 2018 and are manageable with OTC medication. g. It is now that he writes the Department of Defense because he has tried to correct every aspect of his life that he deemed imperative for personal and emotional growth and believes he should finalize this to close a chapter of his life that has been left unattended. It was with great disappointment that he could not fulfill his obligation to the U.S. military and he believes that under conditions that did not involve a head injury, he would have successfully fulfilled his obligation. He did successfully return to the university, accomplished an academic renewal, and completed a Bachelor of Arts degree in Sociology in 2015. It has been an arduous trail to get to this point and he would like to be considered for Veteran status, having honorably performed his duties up to the time of his injury without court-martial. 3. A Standard Form 88 (Report of Medical Examination) show the applicant underwent medical examination on 4 May 2000 for the purpose of USAR enlistment and was found qualified for enlistment with a physical profile rating of “1” in all factors aside from factor H (Hearing and ear), where he received a rating of “2.” 4. A DD Form 4 (Enlistment/Reenlistment Document) shows the applicant enlisted in the USAR for a period of 8 years on 5 June 2000. 5. The applicant provided a Certificate of Achievement, dated 5 December 2001, which was awarded to him for outstanding achievement and performance of duty, energy, leadership, and dedication to mission during the loss of commercial power at WRAMC, while he was assigned to the Student Company, WRAMC. 6. A DA Form 1059, dated 19 March 2002, shows the applicant was a resident student of the 91W, U.S. Army Practical Nurse Course 02-1 at WRAMC from 26 March 2001 through 19 April 2002 [a period amounting to 1 year and 19 days], where he successfully achieved all course standards and completed all requirements for graduation. 7. Despite the evidence of record showing the applicant served on active duty at WRAMC to successfully attend and complete 91W MOS training from 26 March 2001 through 19 April 2002, his available service records do not include a DD Form 214 (Certificate of Release or Discharge from Active Duty) reflective of this active duty for training, the characterization of that service, and the narrative reason for discharge. 8. A University of New Mexico Health Operative Report, dated 17 October 2002, shows the following: a. The applicant presented to this operating visit with a history of assault approximately 1 week prior with resulting left zygomaticomaxillary complex fractures (tripod, tetrapod, quadripod malar or trimalar fracture/traumatic injury to the face) to be repaired by open reduction internal fixation. b. His diagnosis was left zygomaticomaxillary complex fracture and depressed left zygomatic arch and the description of the repair procedure, which included Leibinger plates with 15 screws is detailed in the report. 9. A National Council Licensure Examination for Practical Nurses Candidate Report, dated 28 May 2003, shows the applicant passed the National Council Licensure Examination for Practical Nurses via examination on 28 May 2003, as a member of the USAR and was licensed by the Texas Board of Vocational Nurse Examiners. 10. Headquarters, 90th Regional Readiness Command Orders 03-323-00024, dated 19 November 2003, discharged the applicant from the USAR under other than honorable conditions under the authority of Army Regulation 135-178 (Army National Guard and Reserve Enlisted Administrative Separations). The reason for the discharge is unlisted on the orders. 11. A review of the U.S. Army Human Resources Command (AHRC) Soldier Management System (SMS) confirms a transaction was completed to involuntarily discharge the applicant from the USAR and archive his record on 19 November 2003, due to unsatisfactory participation. 12. A VA letter, dated 18 December 2017, certifies that the applicant was discharged from the U.S. Armed Forces having served the following periods: * U.S. Army, entered active duty on 5 June 2000 and released from active duty on 19 April 2002, character of discharge unknown * U.S. Army, entered active duty on 9 August 2000; released from active duty and character of discharge fields are blank 13. An NPRC letter, dated 12 January 2018, shows the applicant was provided a complete copy his military service records in the electronic records storage system and that some documents he requested were not located. He was advised to contact AHRC to potentially locate the missing documents. It is unclear from the available documentation if the applicant subsequently requested the issuance of a Statement of Service from NPRC or AHRC. 14. An Affinity Recovery letter, dated 11 March 2022, shows the applicant was a client at Affinity Recovery, an inpatient drug and alcohol treatment facility from 10 February 2022 through successful program completion on 10 March 2022. 15. A University of New Mexico transcript, dated 29 March 2022, shows the applicant was awarded a Bachelor of Arts degree on 11 May 2019 in Sociology. 16. A University of New Mexico Student Health and Counseling Document, dated 21 April 2022, along with 165 additional pages of corresponding medical records from the University of New Mexico Student Health and Counseling, all of which have been provided to the Board for review, show the applicant was diagnosed with and treated for general anxiety disorder and depression as well as physician notes showing diagnoses and treatment for headache and pain management between 2015 and 2018. 17. In the adjudication of this case, and advisory opinion was provided by the U.S. Army Reserve Command (USARC) on 19 December 2022, which shows the following: a. Records indicate the applicant enlisted in the USAR in June 2000, for what is currently MOS 68W (Health Care Specialist), with the 2291st USAR Hospital in, Albuquerque, NM. He began Basic Combat Training (BCT) in August 2000 and graduated from the Licensed Practical Nurse (LPN) course in April 2002. Although the applicant should have received a DD Form 214 for this period of active duty, his record in the Interactive Personnel Electronic Records Management System (iPERMS) does not contain a copy. The applicant’s active duty attendance and graduation from LPN school was verified through the Army Training Requirements and Resources System. b. The applicant began attending Battle Assembly (BA) with his USAR unit on 1 June 2002, following his graduation from LPN school. His BA attendance was consistent from June 2002 until his final BA attendance on 8 June 2003. The applicant was declared an Unsatisfactory Participant by his unit commander upon reaching 9 unexcused absences. Separation action was initiated and he was separated from the USAR on 19 November 2003, with an under other than honorable conditions character of service discharge. A copy of this discharge order is enclosed for your information. c. The applicant’s final physical data entry, dated June 2003, indicates a physical profile serial system PULHES rating of 111211, which shows no physical limitations, other than slight hearing impairment (H2). In accordance with regulatory guidance, a Soldier requires a 3 in their PULHES, signifying a disqualifying condition prior to a medical board referral. There are no records indicating a disqualifying medical condition or referral to a medical board. d. After exhaustive review of this case, the USARC cannot recommend relief for the applicant. Although he experienced several medical conditions following his service in the USAR, the applicant’s records do not indicate a connection between his service in the USAR and medical conditions. Unfortunately, the applicant stopped attending BA after June 2003 until his discharge in November 2003. 18. On 22 December 2022, the applicant was provided a copy of the USARC advisory opinion and given an opportunity to submit comments, but he did not respond. 19. 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 the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting a discharge upgrade and, in essence, a referral to the Disability Evaluation System (DES). He states: (1) “I sustained a TBI with placement of 3 titanium plates and 18 screws. I went to my last reserve drill in Albuquerque and was asked to process out at that time. I refused because I was under duress and really thought I could get better quickly . (2) Due to the extent of my injuries and inability to focus my mind and attention as well as crippling headaches and loss of vision I was asked to process out of the reserve unit I was attending but chose not to under duress. Additionally, I was promoted to E-4 and attended drills regularly and my two-week training at William Beaumont Army Medical Center in 2003 in El Paso after Active duty and maintained good standing in the 2291st. (3) Upon further attempts to contact the reserve unit I attended after spending 1 year and 10 months Active Duty in 2015, when I returned to, they had been disbanded and I had no avenues to investigate to process out completely under a medical discharge or Honorable Condition. I suffered with inability to focus on complex tasks for many years thereafter with vision impairment and grappled with Depression / Anxiety causing alcohol dependency.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. Orders published by the 90th Regional Readiness Command show the applicant’s discharged on 19 November 2003 with an under other than honorable characterization of service under provisions of Army Regulation 135- 178, Army National Guard and Army Reserve – Enlisted Administrative Separations. The orders do not cite a paragraph or chapter, but a Soldier Management System (SMS) screenshot shows the applicant was involuntarily separated for unsatisfactory participation. c. The United States Army Reserve Command’s advisory does an excellent job addressing the military aspects of the applicant’s service and administrative separation. This review will focus on evidence of a potentially mitigating medical condition. d. Medical documentation shows the applicant underwent open reduction and internal fixation of a zygomaticomaxillary complex fracture on17 October 2002. The operative report states the injury was due to an assault the week prior. There is no indication this injury was related to his military service. e. The remaining 164 pages of medical documentation is form civilian providers form 2015-2017. It shows he was being treated for generalized anixiety disorder and chronic pain syndrome. f. There is no evidence the applicant had a medical condition which prevented him from attending unit training assemblies or at least maintaining telephonic contact with his unit leadership. g. Review of his records in JLV found no clinical encounters or medical diagnoses on his medical problem list. It is the opinion of the ARBA medical advisor that neither a discharge upgrade nor a referral to the DES is warranted. BOARD DISCUSSION: The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The evidence of record shows the applicant enlisted in the USAR in June 2000, for MOS 68W (Health Care Specialist). He began attending Battle Assembly (BA) with his USAR unit on 1 June 2002 and his attendance was consistent from June 2002 until his final BA attendance on 8 June 2003. The applicant was declared an Unsatisfactory Participant by his unit commander upon reaching 9 unexcused absences. Separation action was initiated, and he was separated from the USAR on 19 November 2003, with an under other than honorable conditions character of service discharge. The Board reviewed and agreed with the USARC medical review as well as the ARBA medical advisor’s finding no records indicating a disqualifying medical condition or referral to a medical board. There is no evidence the applicant had a medical condition which prevented him from attending unit training assemblies or at least maintaining telephonic contact with his unit leadership. Based on the available evidence, the Board determined neither a discharge upgrade nor a referral to the disability evaluation system is warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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 (Disability 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 a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (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 Physical Evaluation Board (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. 3. Army Regulation 635-40 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. 4. Army Regulation 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40 with the following caveats: a. U.S. Army Reserve (USAR) or Army National Guard (ARNG) Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation. b. Reserve Component Soldiers pending separation for In the Line of Duty injuries or illnesses will be processed in accordance with Army Regulation 40-400 (Patient Administration) and Army Regulation 635-40. c. Normally, Reserve Component Soldiers who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 (USAR Assignments, Attachments, Details, and Transfers) or discharged from the Reserve Component per Army Regulation 135–175 (Separation of Officers), Army Regulation 135–178 (ARNG and Reserve Enlisted Administrative Separations), or other applicable Reserve Component regulation. They will be transferred to the Retired Reserve only if eligible and if they apply for it. d. Reserve Component Soldiers who do not meet medical retention standards may request continuance in an active USAR status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Reserve Component Soldiers with non-duty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9–12. 5. 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. 6. Army Regulation 135-178, in effect at the time, establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard of the United States and USAR. It states a Soldier is subject to discharge for unsatisfactory participation when it is determined the Soldier is unqualified for further military service when he/she is deemed an unsatisfactory participant per Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Provisions). Service may be characterized as under other than honorable conditions when discharge is for misconduct, fraudulent entry, homosexual conduct, unsatisfactory participation, or security violations 7. Army Regulation 135-91 defines ARNG and USAR service obligations. It states a Soldier is an unsatisfactory participant when 9 or more unexcused absences from scheduled inactive duty training periods occur during a 12-month period. 8. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 9. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008168 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1