IN THE CASE OF: BOARD DATE: 2 May 2023 DOCKET NUMBER: AR20220008883 APPLICANT REQUESTS: in effect, * physical disability discharge in lieu of a condition, not a disability * telephonic appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * applicant’s statement * medical documents (8 pages) * Orders 295-0014, 22 October 2007 * Servicemembers Group Life Insurance Election and Certificate, 25 October 2007 * DD Form 2648 (Preparation Counseling Checklist), 27 October 2001 * Record of Emergency Data * Enlisted Record Brief * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Memorandum, Headquarters, United States Army Garrison, Fort Carson, 25 October 2007 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 when he was discharged from the service under Army Regulation (AR) 635-200, chapter 5-17, he was told it was just a failure to adjust to the military and that after he got out of the service all his issues would go away. He does not know what the correct discharge should have been, but he knows the one that he received is incorrect. a. He has been struggling with both a panic disorder and agoraphobia directly relating to the things that he experienced in the military. He has not had steady employment since he left the military. He struggles to leave the house most days. He has read the recommendation(s) for his discharge, they were right, he could not fulfill his duties; however, it was more than just being unable to adapt to the military. b. He had no mental health issues prior to joining the military, nor during basic training. It wasn't until he got to his first duty station that problems started to occur. The way things stand, he has no hope of a future without getting some sort of disability for his mental health issues. The Department of Veterans Affairs (VA) has denied him [benefits] multiple times. Getting his discharge changed would help him achieve some sort of a future. 3. The applicant provided: a. A statement indicating, he has provided a list of documents and details about them: (1) The first item is the recommendation for discharge from a military psychologist. At the time they based this recommendation on the fact that he could not adjust to the military lifestyle. They believed his issues would go away once he was discharged from the military. They were correct that his condition affected his ability to function, but they were incorrect about the cause. (2) His Emergency Room (ER) visits for panic attacks/anxiety documents his condition from November 2007 to June 2011. This is just a small sample of the trips he had to the ER for anxiety/panic attacks over the last 15 years. They started at Fort Carson in mid-2007 and continues. He does not have all his records for the last 15 years. The small sample that he has are from his records dated between 2007 and 2011. His most recent ER visit was about 2 weeks ago. (3) Medications used to treat his conditions while on active duty were prescribed by Doctor in 2007. He is unsure of who or when it was in 2007, but he recalls one of the mental health professionals he was seeing at Fort Carson in the mid to late 2007 mentioning agoraphobia. The panic attacks and agoraphobia have been going on since mid-2007. This is when it started and why he was discharged. They rushed him through the discharge process in hopes that getting him out of the military would resolve his issues. But they were wrong. His condition was not an adjustment disorder. This condition has been ongoing and so has his inability to function in daily life. He has not been able to keep steady employment since he got out of the military because of panic disorder and agoraphobia. (4) He would like to explain the military culture is that anyone who gets put on a medical profile is a piece of “crap.” There is a culture that once someone is hurt or injured and not allowed to do things for certain reasons, they are labeled and treated accordingly. The next thing that was made clear to him is that you do not report people, if you do, you will get retaliated against. The retaliation may not come directly from that person, but from other people in the chain of command. Those two things will become relevant when he gets into his history and the things he experienced in the military. (5) Now he will give a brief explanation of the other items he attached. The medical records are from the ER where he was seen for a panic attack. He does not have the records for all the times that he has gone for his attacks over the years, just a few examples. One of the documents that is included is the recommendation for his discharge from the military. Another took place a brief time after he had gotten out of the military. There were some things that he could not adapt to, and he will get into that next, but it was not the military lifestyle. (6) Prior to going into the military, all he wanted to do was be a Soldier. Originally, he planned to join the Marines, but his boss in high school was an Army veteran, so he decided to join the Army. He enlisted in the Army on his 18th birthday and chose the infantry. He graduated from basic training in October 2006, without any problems other than a shoulder injury. He was assigned to the 4th Infantry Division, Fort Carson after basic training. (7) Initially, he was assigned to a temporary barracks while he awaited an assignment in the unit's barracks. Here his military career took a dark turn. A few months after arriving at Fort Carson, he was diagnosed with a heart condition and put on a medical profile that limited his duty. Due to this profile, he was placed on a desk at the company to answer phones and do what he could to help. A few days into desk duty, around lunch time, he asked one of the noncommissioned officers if he could get someone to relieve him so he could get some chow. The general response was, “You have not done anything, so you don't need to eat.” From this day forward, from the moment he arrived in the morning until the time he got off work at night, if he wanted to eat, he had to get something out of the company store or order take out from somewhere and have it delivered. Unfortunately for him, he could only afford that for about a half a month on a private's paycheck. All the other Soldiers who had been assigned temporary barracks moved out to the unit's barracks, but he was left in the temporary barracks. (8) One Saturday he awoke to a sergeant major standing over him inquiring about who he was and what he was doing in his barracks. After a very brief conversation, the sergeant major told him that he had until that evening to get out of his barracks. He immediately packed up his truck and contacted his unit to get a new barracks assignment. The person who oversaw that was on leave until the following Friday, so, he lived in his truck for the next week awaiting his return. The following Friday, he was informed that person was no longer over the barracks assignment. He then began contacting others in his chain of command for help with no luck. He is unsure how long he lived in his truck before he took matters into his own hands. After 2 or 3 months he found an empty barracks room and broke in so he would have a place to stay. The Soldier that shared the common area with the room that he took was a Soldier that he knew from his previous barracks assignment. What he did not know at that time was that Soldier and the guy he was running around with were strung out on meth. When he found out, he had to make a choice between going back to living in his truck or staying in that room and minding his own business. (9) He chose the latter and kept squatting in the empty room. One night he overheard one Soldier telling the other Soldier how funny it would be to drug him in his sleep. What would be funnier than giving someone with a heart condition meth without them knowing? Not long after that happened, He woke up in the middle of the night with that same Soldier in his room. He had one hand on a pillow covering his face and the other hand on his throat pinning him to the bed. After a struggle he was able to break free. (10) It was not that he failed to adapt to the military. He could have done the job once he got medically cleared. What he could not handle was the abuse and the abandonment. He was 19 years old, a thousand miles from home, diagnosed with a potentially fatal condition, and the people who were supposed to have his back turned on him. He had no one. He was told he did not deserve to eat and was left homeless because of a health issue. He has been out of the military for almost 15 years, and he is now able to talk about these things. There are a couple reasons for that. One was shame. For a long time, he was not sure he did not deserve the treatment he received. The other was for fear of being treated that way again. (11) He was not an outstanding Soldier; he was mediocre at best. He knew going into the military there would be times where he may have to give up meals, sleep outside, not shower, not sleep, and risk his life. He was also no stranger to insults and abuse. He was an umpire for 4 years before joining the military. He took all kinds of abuse in that job. What he did not expect when he joined the military was for the people who were supposed to look out for him and have his back, turn their backs on him and abandon him. (12) By the time he left Fort Carson, he slept with a tire iron in his hand and a desk barricading the door. He had severe anxiety and agoraphobia and was completely dependent on drugs. The prescriptions they gave him for anxiety and agoraphobia were the only thing he had to lean on to get him through everything that went on. When he left the military, things did not get better. The damage had already been done. He does not know, maybe he was just weak. Maybe a stronger person would have been able to cope with all those things. It was just too much for him. He never knew what it meant to feel truly alone until he joined the military. He always believed that no matter how terrible things got, the Army would have his back. (13) It has been almost 15 years since he got out of the military, and he has no friends because he no longer trusts anyone. He has not had a decent night’s sleep since basic training. He is currently being seen by mental health at the VA, and his doctor told him that if his issues are not service connected then he does not know what is. This is someone who deals with veterans all the time and cannot understand how he cannot get disability. He was denied, not even evaluated. The issues that developed in the military are a direct result of the abuse he had to deal with. (14) It has been an ongoing thing for many years and although he is going through counseling and trying to get better, it will always be a part of him. He asks that his discharge be changed, it will not give him his life back, but it will help give him stability. It will help him take care of himself financially. He apologizes for writing so much, but he was afraid he would not get a chance to appear in front of the Board to tell his story. b. The following medical documents: (1) Page two of his Mental Status Evaluation showing treatment at the Department of Behavioral Health, Evans Army Hospital was recommended with follow- up appointments. There was also a recommendation against his use of a weapon, live ammunition, and securing off-post weapons. Expeditious administrative separation was recommended in accordance with (IAW) Army Regulation (AR) 635-200, chapter 5-17. The provider remarked the applicant’s diagnosis of adjustment disorder represented a condition that significantly impaired his ability to function effectively in a military setting. Additional treatment would not, in the psychologist’s opinion, be able to restore him to a fully functional capacity, nor would command efforts at rehabilitation, reclassification, or unit transfer. However, his condition did not warrant disposition through medical channels. Prolonged retention on active duty would likely lead to further management difficulties for the command. Therefore, expeditious administrative separation IAW AR 635-200, chapter 5-17 was recommended. (2) Four Emergency Department Patient Care Records, showing he was evaluated for a panic attack on 1 November 2007; anxiety on 1 January 2008; “panic” on 5 December 2008; and anxiety/panic attack on 4 January 2009. (3) Discharge follow-up instructions, issued on 21 June 2011, showing he was treated at the Emergency Department, St Vincent Dunn Hospital, Bedford, IN, for a provisional diagnosis of panic attack. It appears he was provided Clonazepam. He provided the instructions he was given for this medication. c. Memorandum, Installation Management Command, Headquarters, U.S. Army Garrison, Fort Carson, CO, subject: Missing Documents, dated 25 October 2007, confirming he did not have medical/dental records during the final out-processing appointment at the Fort Carson Transition Center. 4. On 27 June 2006, the applicant enlisted in the Regular Army for 3 years and 19 weeks, in pay grade E-2. 5. The applicant’s DD Form 2807-1 (Report of Medical History), dated 11 August 2007, indicates he answered “Yes” to having various health issues and provided the following explanations: * 10d – Asthma/breathing, trouble breathing when running * 10e – Shortness of breath (SOB), told by doctors he was hyperventilating * 11g – Hearing loss or wear a hearing aid, hearing loss due to failure to wear hearing protection * 12a – Painful shoulder, elbow, or wrist, frequent pain in left shoulder, due to basic training injury * 12c – Recurring back pain or any back problem, frequent pain in lower back * 15a – Dizziness or fainting spells, frequent spells of dizziness * 15b – Frequent severe headaches, frequent severe headaches for unknown reasons * 16c – Pain or pressure in the chest, sharp pain, and tightness in left side of chest * 16d – Palpitation, pounding heart or abnormal heartbeat, occurs normally with dizziness * 16f – High or low blood pressure, low blood pressure on more than one visit to the doctor or ER * 17a – Nervous trouble of any sort, diagnosed with anxiety disorder * 17d – Frequent trouble sleeping, problems falling a sleeping and staying asleep * 17e – Received counseling of any type, received counseling at Evans Army Community Hospital * 17f – Depression or excessive worry, prescribed medication for depression at mental health * Examiner’s Summary and Elaboration of all Pertinent Data – * 10 – SOB - attributed to hyperventilation/panic * 12 – Shoulder pain – started in basic training – rotator cuff strain * 17 – possibly sleep apnea 6. DA Forms 4856 (Developmental Counseling Form) show the applicant was counseled on the following occasions: * 6 September 2007, for failure to follow a lawful order by not following platoon sick call procedures * 6 September 2007, for failure to report for duty * 6 September 2007, revocation of on and off post driving privileges due to “blacking out” * 6 September 2007, for failure to attend a behavioral health appointment * 3 October 2007, notification of initiation of separation IAW AR 635-200, chapter 5-17 7. A Report of Mental Status Evaluation, dated 7 September 2007, shows the following: a. The applicant’s evaluation consisting of a clinical interview, he carried the following diagnosis IAW “DSM” IV: * AXIS I: Adjustment disorder with mixed emotional features * AXIS II: No Diagnosis * AXIS III: None * His current potential for self-harm, harm to others, and going absent without leave were low b. The examiner, a clinical psychologist, noted his condition did not warrant disposition through medical channels. Prolonged retention on active duty would likely lead to further management difficulties for the command. Therefore, expeditious administrative separation IAW AR 635-200, chapter 5-17 was recommended. 8. A Report of Medical Assessment, dated 11 September 2007, shows the applicant was assessed for separation processing. He indicated since January 2007, his physical/mental health had worsened due to anxiety and depression. He had been admitted to the hospital and was seen numerous times by different providers. He had a left shoulder injury that limited his ability to carry weight. His anxiety affected his memory, ability to sleep, eat, work, and other parts of his life. 9. His DD Form 2808 (Report of Medical Examination) confirms he was found qualified for service/separation and assigned a physical profile of 111111, on 24 September 2007. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 10. On 9 October 2007, the applicant was notified action was being initiated to separate him under the provisions of AR 635-200, chapter 5-17. The reason for the proposed action was his adjustment disorder that significantly impaired his ability to function effectively in a military setting. He was advised: * he has the right to consult with consulting counsel and/or civilian counsel at no expense to the Government within a reasonable time (not less than 3 duty days) * he may submit written statements on his own behalf * he may obtain copies of documents that will be sent to the separation authority supporting the proposed separation * he may waive his rights in writing and may withdraw any such waiver at any time prior to the date the separation authority orders, directs, or approves separation 11. On the same date, he acknowledged notification. On 11 October 2007, he elected not to submit statements in his own behalf and requested further counsel. 12. The applicant’s chain of command recommended his separation from active duty prior to his expiration term of service under the provisions of AR 635-200, chapter 5-17, for other physical or mental conditions. 13. Accordingly, on 16 October 2007, he was discharged. His DD Form 214 shows he was honorably discharged in accordance with chapter 5-17 of AR 625-200 (Separation Code JFV, Reentry Code 3). His narrative reason for separation shows condition, not a disability. He was credited with completing 1 year, 3 months, and 29 days of net active service this period. 14. The applicant’s submissions were provided to the Board in their entirety. 15. In regard to the applicant's request for a telephonic appearance, AR15-185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of the ABCMR. 16. AR 635-200, sets forth the basic authority for the separation of enlisted personnel. sets forth the basic authority for the separation of enlisted personnel and policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers. Readiness is promoted by maintaining high standards of conduct and performance. Chapter 5, Paragraph 5-17 states: Commanders specified in paragraph 1–19 may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (AR 635–40) and excluding conditions appropriate for separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to— * chronic airsickness * chronic seasickness * enuresis * sleepwalking * dyslexia * severe nightmares * claustrophobia * other 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 17. 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. 18. Title 38, USC, 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. 19. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 20. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting physical disability discharge in lieu of a condition, not a disability. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the Regular Army on 27 June 2006; 2) On 16 October 2007, the applicant was discharged with a Chapter 5-17 for other physical or mental conditions, and his character of service as honorable. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The Armed Forces Health Longitudinal Technology Application (AHLTA), iPERMS, the VA’s Joint Legacy Viewer (JLV), and civilian medical records were also examined. d. The applicant states he incurred a psychiatric disability, while he was on active service. Specifically, the applicant reported experiencing panic disorder with agoraphobia while on active service. The applicant consistently reported that he did not experience any behavioral health symptoms prior enlisting in the Army. He first reported difficulty breathing and being lightheaded after arriving at Ft. Carson in early January 2007. He was seen in primary care on 4 January 2007 after being treated in the Emergency Room (ER) the night prior. He was diagnosed with anxiety and prescribed Xanax (40 pills) as needed at the ER. A consistent pattern emerged of the applicant repeatedly reporting to both military and civilian ERs with symptoms of increased heart palpitations and being lightheaded multiple times a month for several months. He was repeatedly referred to primary care after being discharged ER, and he was consistently diagnosed with anxiety. He was also prescribed various anxiolytic medication on different visits to the ER (ex. Xanax, Valium, Ativan, and Buspar). Due to his reported symptoms, the applicant was also referred to cardiology where he was assessed for a possible heart condition on multiple occasions. e. On 7 May 2007, the applicant was referred to psychiatry during one of his visits to the ER. He reported the greatest improvement with his symptoms occurred while he was taking Xanax, and he would often rapidly utilize all the medication prescribed prior to his scheduled refill date. The applicant also discussed his history of symptomatology and his utilization of medication and repeated visits to the ER and referral to cardiology. The applicant was diagnosed with Anxiety NOS, and prescribed Xanax again. He was instructed to “use it sparingly” [due to fact it can be addictive] and also prescribed Celexa, a non-addictive antidepressant used in the long term to treat anxiety disorders. He followed up with the same psychiatrist as his regular prescribing provider. In his next follow-up appointment, he reported the Xanax was not working as well, and he was not tolerating the Celexa. The applicant continued to follow up with this provider. However, he did not regularly attend appointments, did not attend recommended psychotherapy, would regularly request refills of his medication before his scheduled refill, and continued to report to the ER with panic attacks requesting additional medication. The applicant went home on leave in the Summer of 2007, and he reported a significant improvement in his symptoms while he was away from the Army. His psychiatrist referred him for psychological testing to assess the benefit of psychotherapy and for diagnostic clarification. f. He was seen by a clinical psychologist for psychological testing 16 and 20 August 2007. The applicant’s results were found to be invalid due to an overreporting of psychological symptoms and inconsistency of reporting. There was also significant incongruence with the applicant’s presentation in session and his report of symptomatology on his testing. The results of the testing were presented to his psychiatrist. He was diagnosed with Anxiety Disorder NOS and malingering. It was noted that the applicant may have an anxiety disorder “but he appears to be grossly overreporting his symptoms of anxiety and depression, and he may be feigning psychotic symptoms. A personality disorder seems likely. SM (Service Member) may have a somatoform disorder or this may be part of his malingering presentation.” The applicant had previously been recommended for psychotherapy, but the applicant declined to attend therapy at that time. g. On 07 September 2007, the applicant was seen urgently at the request of his First Sergeant, who needed a disposition of the applicant due to an upcoming field exercise and deployment. The applicant continued to report anxiety associated with being in the military and an improvement in his symptoms when he returned home. He was also reporting aggressive urges toward other soldiers. The applicant was described to be heavily sedated throughout the day due to inappropriately taking multiple doses of his anxiolytic medication during the day and not consistently taking his daily antidepressant medication. The applicant was recommended for an administrative separation from the military as a result of his presentation and the results of the previous psychological testing. He was diagnosed with an adjustment disorder with mixed emotional features. His command supported this recommendation. The applicant was seen on 11 September 2007 by his psychiatrist. He reported feeling better with the initiation of the administrative separation chapter and stated, “I really don’t think I need the meds anymore.” He reported mild anxiety and depression. He was diagnosed with an adjustment disorder. The applicant did not continue in regular therapy and only reported a mild increase in anxiety as the date of his discharge approached. Later in January 2009, the applicant reenlisted in the Indiana Army National Guard. He was found fit to serve. h. A review of JLV provided evidence the applicant was initially seen at the VA for behavioral health treatment on 05 April 2016. He has been diagnosed and treated various behavioral health conditions to include opioid abuse, panic disorder and agoraphobia with panic disorder. The applicant has continued a pattern of reporting to the ER for panic, and he is actively engaged in regular therapy within the system of care at the VA. The applicant was found to be 100-percent service-connected for panic disorder on 27 November 2021. i. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant experienced significant difficulty adjusting to military life. The applicant was properly assessed by two appropriate licensed military behavioral health providers, while on active service. He was found to meet retention standards, but due to his inability to adapt efficiently, he was found unfit for continued military service. Of note, the applicant reenlisted into the Indiana Army National Guard and was found to be medically fit to serve at that time. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant has been diagnosed with panic disorder. (2) Did the condition exist or experience occur during military service? Yes, the VA’s granting of service connection for panic disorder (100% Service Connected) establishes it occurred during military service. (3) Does the condition experience actually excuse or mitigate the discharge? No, there was sufficient evidence the applicant was experiencing significant difficulty adjusting to the military. He was appropriately command referred and assessed for his suitability for continued military service and possible referral to IDES. The recommendation for a Chapter 5-17 was fully supported and well documented. In addition, the applicant volunteered to enlist again in the Indiana National Guard after being discharged from the Regular Army, and he was found medical fit to serve. Therefore, there is insufficient evidence at this time to support a referral to IDES. j. Psychiatric Review: The ARBA Senior Behavioral Health Advisor reviewed the case file and ARBA medical advisory prepared for the applicant's ABCMR case. The senior Behavioral Health Advisor concurred with the behavioral health findings and conclusions rendered by the Behavioral Health Advisor. Review of the applicant’s record indicates that his Chapter 5-17 separation for Other Physical or Mental Conditions was proper and equitable. Evidence in the medical record does not support a referral to IDES for consideration of medical disability. The applicant’s contention that he should have received a medical disability instead of a chapter 5-17 separation notwithstanding, the fact that the applicant met accession standards and was able to reenlist in the Indiana National Guard after being separated from the Regular Army under Chapter 5-17 indicates that he was not medically disabled. BOARD DISCUSSION: 1. The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The evidence of record shows the applicant was honorably discharged by reason of “condition, not a disability.” The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical official’s finding no evidence in the medical record to support a referral to the Integrated Disability Evaluation System for consideration of medical disability. The applicant met accession standards and was able to enlist/reenlist in the ARNG after being separated from the Regular Army, indicating that he was not medically disabled. Based on a preponderance of evidence, the Board determined that the narrative reason for separation the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 15-185 (Army Board for Correction of Military Records) 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/telephonic hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. sets forth the basic authority for the separation of enlisted personnel and policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers. Readiness is promoted by maintaining high standards of conduct and performance. Chapter 5, Paragraph 5-17 states: Commanders specified in paragraph 1–19 may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (AR 635–40) and excluding conditions appropriate for separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to— * chronic airsickness * chronic seasickness * enuresis * sleepwalking * dyslexia * severe nightmares * claustrophobia * other 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 4. Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 5. Title 38 USC, section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 6. Title 38 USC, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 8. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 9. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 10. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 11. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008883 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1