IN THE CASE OF: BOARD DATE: 28 March 2023 DOCKET NUMBER: AR20220009288 APPLICANT REQUESTS: a change to the authority and the narrative reason for her discharge from completion of her required active service to designations commensurate with a disability separation. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 6 June 2022 * SD 600 Medical Document, 31 October 2002 * letter, Dr. 24 July 2016 * letter, Veterans Administration (VA) Benefits, 16 May 2018 * 52 pages of medical progress notes and document, 2017-2020 * letter, VA Summary of Benefits, 19 January 2022 * letter, Social Security Administration Notice of Award, 30 May 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, in effect: a. She was afraid for her life and didn't say anything at the time of her service following two sexual assaults from other Soldiers. If she had said anything she would have been murdered like other women in her unit. b. She suffered from undiagnosed post-traumatic stress disorder (PTSD) and military sexual assault (MST) as shown by medical evidence she provided. 3. The applicant provided copies of: a. A medical document, 31 October 2002, showing an unverified OB/GYN consultation with a 2 1/2 year history of chronic intermittent pelvic pain. b. A letter form Advanced Practice Registered Nurse, and Adult-Gerontology Acute Care Nurse Practitioner, 24 July 2016, which gave a history of the applicant's medical conditions since her service. The narrative outlined conditions related to a misdiagnosis and subsequent treatment she received after the fact. c. A VA Benefits letter, 16 May 2018, granting her service connected disability benefits, in part, from PTSD and major depressive disorder. d. Medical documents showing treatment for sexual trauma, PTSD, and associated conditions, from 2017 to 2020. e. A VA Summary of Benefits letter, 19 January 2022, showing her service connected disability rating was 100% as of 21 November 2019. f. A Social Security Administration, Retirement, Survivors and Disability Insurance award letter, 30 May 2022showing she was entitled to benefits beginning in July 2020 4. The applicant's available service records show: a. On 19 August 1999, she enlisted in the Regular Army for 4 years beginning at grade/pay grade specialist/E-4 and at age 23. She completed basic combat training, she completed Advanced Individual Training and she was awarded military occupational specialty 92G (Food Service Specialist). b. On 1 April 2003, Yongsan Transition Center issued her Orders 091-002, releasing her from AD not by reason of physical disability and assigned her to U.S. Army Reserve (USAR) Control Group (Reinforcement), effective 18 August 2003. c. On 18 August 2003, she was honorably released from Active Duty after completing 4 years of net active service this period and transferred to control of the USAR Control Group (Reinforcement). Her DD Form 214 (Certificate of Release or Discharge From Active Duty) shows in: * Block 25 (Separation Authority) – Army Regulation 635-200, Chapter 4. * Block 26 (Separation Code) – MBK * Block 28 (Narrative Reason for Separation) – Completion of Required Active Service d. On 22 May 2007, she was honorably discharged from the USAR. 5. The Army Review Boards Agency requested and the U.S. Army Crime Records Center provided a memorandum, 16 December 2022, (Request for Sanitized Record of Investigation and Military Police Reports for Official use Purposes (Military Sexual Assault/Trauma) – (Applicant)). Its search of the Army criminal files indexes revealed no records pertaining to the applicant. 6. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting a change to the authority and the narrative reason for her discharge to designations commensurate with a disability separation. She contends she should receive physical disability retirement based on the fact that she had PTSD while on active duty that went undiagnosed. 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 into the Regular Army on 19 August 1999; 2) Yongsan Transition Center issued her Orders 091-002, releasing her from AD not by reason of physical disability and assigned her to U.S. Army Reserve (USAR) Control Group (Reinforcement), effective 18 August 2003; 3) On 22 May 2007, she was honorably discharged from the USAR. c. The electronic military medical record, AHLTA, was not reviewed as it was not in use during the applicant’s period of service. No hardcopy military BH-related records were provided for review. A review of the VA electronic medical record, JLV, showed the applicant 100 percent service-connected overall and 70 percent service-connected for PTSD secondary to MST. A VA C&P Examination dated 23 February 2016 showed the applicant reported experiencing MST during June 2000 characterized by being raped in the barracks by a fellow service-member. The applicant reported that subsequent the rape, the perpetrator threatened to destroy her career if she reported the incident. She also reportedly contracted an STD from the rape encounter, that went improperly diagnosed for several months. The applicant reported a second MST that reportedly occurred while stationed in South Korea. According to the applicant, a group of soldiers attempted to rape her, at a party, but she managed to fight them off. The applicant reported symptoms sufficient to meet a diagnosis of PTSD secondary to MST and the examiner deemed to condition to be associated with trauma endured during military service. d. The applicant’s first BH-related engagement with the VA appears to have occurred at the Charleston SC VA on 11 May 2015. The applicant presented to the Primary Care Mental Health Clinic (PCMH) with complaints of anxiety. She reported avoidance of crowds due to fear, hyperarousal, hypervigilance, and being easily triggered by loud noises. She also reported a history of nightmares with content dealing with an incident that occurred in her barracks, and another involving the base she was stationed at being overrun by protesters. She was diagnosed with Anxiety NOS and scheduled for follow-up. She was seen for follow-up on 31 July 2015 and during the encounter her problem list was amended to include Sleep Problems. Records showed the applicant was diagnosed with MDD postpartum on 25 January 2016 and the MDD diagnosis was also reflected in encounters dated 10 and 16 February 2016. As previously stated, the applicant underwent her C&P Examination on 23 February 2016, during which time she detailed her MST and was subsequently diagnosed with PTSD. Records showed that the applicant also shared her MST experience with her provider on 3 March 2016, and her diagnosis of record was changed to reflect PTSD. Records appear show the applicant engaged in outpatient individual and group BH treatment at the VA through November 2021. e. The applicant requests a change in the authority narrative reason for discharge to be commensurate with a disability separation. A review of the records was void of the applicant receiving a BH-related diagnosis or treatment during service, and although the applicant is 70 percent SC for PTSD secondary to MST there is insufficient evidence in the record the applicant’s condition was unfitting per AR 40-501, Chapter 3, at the time of separation. Additionally, Paragraph 3-1 of AR635-50 states, in part, that “the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. Furthermore, Title 38, U.S. Code, sections 1110 and 1131 states, in part, that the VA can award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. Given the above, it is the opinion of this advisor that there isn’t sufficient evidence in the records the applicant had a medical condition that warranted separation through military medical channels or warrants physical disability retirement. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant is 100 percent SC, and 70 percent SC for PTSD secondary to MST. (2) Did the condition exist or experience occur during military service? Yes. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant requests a change in the authority narrative reason for discharge to be commensurate with a disability separation. A review of the records was void of the applicant receiving a BH-related diagnosis or treatment during service, and although the applicant is 70 percent SC for PTSD secondary to MST there is insufficient evidence in the record the applicant’s condition was unfitting per AR 40-501, Chapter 3, at the time of separation. Additionally, Paragraph 3-1 of AR635-40 states, in part, that “the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. Furthermore, Title 38, U.S. Code, sections 1110 and 1131 states, in part, that the VA can award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. Given the above, it is the opinion of this advisor that there isn’t sufficient evidence in the records the applicant had a medical condition that warranted separation through military medical channels or warrants physical disability retirement. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The evidence of record shows the applicant served on active duty from 19 August 1999 to 18 August 2003. She was honorably released from active duty after completing 4 years of active service, in accordance with chapter 4 of AR 635-200 due to completion of her required active service. The Board reviewed and agreed with the medical advisor’s finding that the applicant’s record was void of the applicant receiving a behavioral health (BH)-related diagnosis or treatment during service, and although the applicant is 70% service-connected for PTSD secondary to MST there is insufficient evidence in the record the applicant’s condition was unfitting per AR 40-501, Chapter 3, at the time of separation. Additionally, by regulation, the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. The Board determined there is insufficient evidence in the records the applicant had a medical condition that warranted separation through military medical channels or warrants physical disability retirement. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 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. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is the principle that government officials properly discharged their official duties unless there is evidence showing otherwise. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200, in effect at the time, set policies, standards and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 4 provided a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. b. Paragraph 4-2 provides Personnel released from AD and transferred to the USAR upon completion of the term of service for which ordered into active Federal service, or released to their Reserve Component upon completion of AD. These Soldiers will not be discharged until completion of their reserve obligation. 4. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System according to the provisions of chapter 61 of Title 10 United States Code and Department of Defense Directive 1332.18. It set forth policies, responsibilities, and procedures that apply in determining whether a member was unfit because of physical disability to perform the duties of his office, grade, rank, or rating. If a member was found unfit because of physical disability, it provided for disposition of the member according to applicable laws and policies. a. Paragraph 4-24 provided that Based upon the final decision of the Commanding General, U.S. Army Physical Disability Agency, or the Army Physical Disability Review Board, the Commanding General, Military Personnel Center would issue retirement orders or other disposition instruction separation for physical disability with severance pay. b. Paragraph 4-24b(1) provided U.S. Army Human Resources Command (HRC) will publish orders or issue proper instructions to subordinate headquarters or return any disability evaluation case to U.S. Army Physical Disability Agency (USAPDA) for clarification or reconsideration when newly discovered evidence becomes available and is not reflected in the findings and recommendations. Based on the final decision of USAPDA, HRC will issue retirement orders or other instructions as follows: * permanent retirement for physical disability (Title 10, United States Code, Section 1201 or 1204) * placement of the Temporary Disability Retirement List (Title 10, United States Code, Section 1202 or 1205) * separation for Physical Disability with severance pay (Title 10, United States Code, Section 1203 or 1206) 5. Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, governed medical fitness standards for enlistment, induction, and appointment (including officer procurement programs); medical fitness standards for retention and separation (including retirement); medical fitness standards for diving, special forces, airborne, Ranger, free fall parachute training and duty, and certain enlisted military occupational specialties and officer assignments; medical standards and policies for aviation; physical profiles; and medical examinations and periodic health assessments. a. Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provided the various medical conditions and physical defects which may render a Soldier unfit for further military service. Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by a medical evaluation board (MEB) and will be referred to a physical evaluation board (PEB). b. Paragraph 3-3 (Disposition) stated physicians who identify Soldiers with medical conditions listed in this chapter should initiate an MEB at the time of identification. Physicians should not defer initiating the MEB until the Soldier is being processed for non-disability retirement. Many of the conditions listed in this chapter (for example, arthritis, paragraph 3-14b) fall below retention standards only if the condition has precluded or prevented successful performance of duty. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 7. 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. 8. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. 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. x. Section 1556 of Title 10, United States Code, 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) AR20220009288 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1