IN THE CASE OF: BOARD DATE: 11 August 2023 DOCKET NUMBER: AR20230000104 APPLICANT REQUESTS: in effect, an honorable physical disability separation in lieu of his other than honorable discharge for misconduct (serious offense). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Medical records (2 pages) * DD Form 214 * VA decision letter * El Paso County 409th Judicial District Court discharge from Community Supervision FACTS: 1. The applicant states he is requesting disability for posttraumatic stress disorder (PTSD) and a discharge upgrade due to not being allowed proper treatment when he requested it. He was undiagnosed. 2. The applicant underwent a medical evaluation for the purpose of enlistment on 14 December 2017. His DD Form 2808 (Report of Medical Examination) shows no significant defects. He was found qualified for service and assigned a physical profile of 111111. 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. 3. The applicant enlisted in the United States Army Reserve on 13 June 2018 for a period of 8 years in the delayed entry program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 3 years and 19 weeks on 9 July 2018. He completed his required training and was awarded the military occupational specialty (MOS) 88M (motor transport operator) on 15 November 2018. He was assigned to Fort Bliss, TX for permanent duty effective 16 November 2018. 4. A DA Form 4187 (Personnel Action), dated 11 July 2019, for reinstating pay, shows the applicant was erroneously placed on absent without leave (AWOL) status. He was in and out of the hospital starting 14 May 2019 through 15 June 2019. He returned form (extended) emergency leave on 19 May 2019. Resume pay effective 19 May 2019. 5. A DA Form 4187, dated 15 July 2019, for stop meal deductions, shows a stop for meal deductions due to marriage on 15 February 2019 and barracks termination date of 26 February 2019. 6. A DA Form 4856 (Developmental Counseling Form) shows the applicant was counseled on 2 August 2019. Specifically, CPT M_, the Company Commander was allowing him to break the Military Protective Order (MPO). The only reason for this was to attend the parenting classes that being provided to him from Family Advocacy Program (FAP) and the Family Crisis Center. His was to be escorted by a noncommissioned officer (NCO) to all scheduled classes to and from these appointments. Other than these classes, he was still not allowed any type of contact with his wife. 7. A DA Form 4856 shows the applicant was counseled on 3 September 2019 for failure to be at appointed place of duty, AWOL. Specifically, he failed to be at his appointed place of duty (first formation 0615) at Muleskinner Field. The night prior, SSG C_ R. B_ personally texted him the time, location, uniform and special instructions for him to be present. He did not respond to SSG B_ until approximately 1230 when he responded he was on his way in. SSG B_ asked where he was and why he never responded, his response was he fell asleep (for the first time in days) and didn t wake up to his alarm. The applicant had been warned and counseled several times about his substandard behavior and performance. SSG B_ had tried to reach out to him and help him throughout his difficult home life, he seemingly did the right thing until his pay got reinstated and then he decided to leave again. This behavior was not in keeping with good order and discipline and could not continue. He was advised if this substandard conduct continued, action may be initiated to separate him from the Army. He was advised of the consequences of such action. 8. A DA Form 4187, dated 4 September 2019 for stop pay, shows the applicant was placed on AWOL status effective 4 September 2019. A corresponding memorandum for record, with the subject: Letter of lateness for AWOL status change, dated 10 September 2019, states the applicant s duty status changed due to the following reasons: a. His direct supervisor was attempting to give the applicant ample opportunity to be at his appointed place of duty. b. He had a newborn child in the hospital and his supervisor allowed him to stay at the hospital during the duty day (without documentation). c. His supervisor was collecting factual data as to the actual whereabouts of the applicant. 9. An El Paso Police Department (EPPD) Incident/Investigation Report, dated 11 September 2019, shows police responded to a child endangerment call involving injuries to the applicant s 2 year old son and 5 week old daughter. The report in its entirety is available for the Board s review. 10. A DA Form 2873 (Military Protective Order) was issued on 13 September 2019 to be in effect until 31 October 2019 as a result of the applicant s spouse accusing him of domestic violence. It states the EPPD and Child Protective Services (CPS) are investigating this situation. 11. The applicant was provided Debt Avoidance Counseling on 25 February 2020. 12. On 26 February 2020, the applicant completed a DD Form 2697 (Report of Medial Assessment) stating his health is the same as his last examination on 9 July 2018. He indicated he: * did not have any illnesses or injuries that caused him to miss duty for longer than 3 days * had not required medical treatment * did not suffer from any injury or illness while on active duty for which he did not seek medical care * was not taking any medications * did not have limitations to work in his MOS, a geographic location or assignment * did not have any dental problems * did not have any questions or concerns about his health * did not intend to seek VA disability 13. A DD Form 2807-1 (Report of Medical History), dated 27 February 2020, shows the applicant indicated he had no defects and was in good health. The corresponding DD Form 2808 shows no significant defects. He was found fit for retention and medically cleared for separation, and assigned a physical profile of 111111. 14. A DA Form 3822 (Report of Mental Status Evaluation), dated 24 March 2020, shows the reason for behavior health evaluation as chapter 14 separation for misconduct. He was found to have no duty limitations due to behavioral health issues. He met behavioral health medical retention standards. Section III shows screenings performed for post traumatic stress disorder (PTSD), depression, traumatic brain injury (TBI), substance abuse and sexual trauma. His cognition was found not impaired with normal behavior. His perceptions were found not impaired with normal impulsivity. He did not have elevated risk for harm to self or others. Section IV shows a behavior health diagnosis of bipolar disorder, unspecified. No safety precautions were indicated. He was able to understand and participate in administrative proceedings and appreciate the difference between right and wrong. His behavioral health conditions was not likely a mitigating factor in the alleged behavior leading to administrative separation. The effects of PTSD and TBI were not likely to constitute matters in extenuation that related to the basis of separation. 15. On 5 May 2020, the applicant was notified by his commander that action had been initiated to separate him for commission of a serious offense in that he wrongfully physically assaulted his two children. He also wrongfully possessed marijuana, made a false official statement and conspired against another Soldier. He was recommended an under other than honorable conditions character of service. He was advised of his right to consult with counsel, obtain copies of documents supporting the proposed separation, request a hearing before an administrative board, or present written statements, and may request appointment of military counsel for representation or retain civilian counsel at no expense to the Government. He was advised he may waive his rights in writing. He acknowledged receipt of the notice the same day. 16. On 14 May 2020 the applicant waived consideration of his case by an administrative separation board and a personal appearance before such board. He did not submit statements on his own behalf, and waived consulting counsel and representation by military counsel and/or civilian counsel. He also indicated he had not filed and unrestricted report of sexual assault and did not believe he suffered from PTSD or TBI as a result of deployment overseas in support of a contingency operation in the previous 24 months. 17. A memorandum for record, dated 3 June 2020, prepared by Brigade Judge Advocate, MAJ M_ G. W_ states: a. On 5 May 2020, the applicant was notified of initiation of separation by his commander. On that notification, he was advised he was being recommended for an other than honorable (OTH) discharge based on the misconduct for allegations of child abuse, possession of marijuana, making a false official statement, and conspiring against another Soldier. b. On 14 May 2020, the applicant met with Trial Defense Service (TDS) telephonically and after being advised of his rights by the TDS paralegal, the applicant waived his right to counsel and waived his to a separation board, based on the OTH recommendation. c. On 1 June 2020, MAJ W_ advised TDS that he was not comfortable with the applicant waiving his OTH board, without speaking to counsel. As such, he had MAJ M_ J_ telephonically advise the applicant of his rights and the prejudice he would likely face with an OTH discharge. At 0930, on 3 June 2020, MAJ J_ called MAJ W_ and informed him that he had spoken with the applicant, explained all of his rights and other options available to him, yet even after discussing with counsel, the applicant still wishes to waive his right to an OTH board. 18. The separation action was approved on 11 June 2020. 19. The applicant was discharged on 26 June 2020 under the provisions of Army Regulation (AR) 635-200, paragraph 14-12C for misconduct (serious offense) with an under other than honorable conditions character of service. He was credited 1 year 1 month 18 days net active service this period. 20. The applicant provided: a. A medical record showing a diagnosis for PTSD, generalized anxiety disorder, major depressive disorder (recur, severe, without psychotic features). b. A VA decision letter, dated 1 October 2021, showing he is service connected for treatment purposes only for bipolar disorder with other specified trauma and stressor related disorder and degenerative disc disease with intervertebral disc syndrome. He is barred from benefits due to his discharge. Specifically, he was separated from the Army because he wrongfully physically assaulted his two children and was prosecuted as a felony abuse by the state of Texas, county of El Paso. He was confined by civilian authority from 4 September 2019 through 31 January 2020. He was also charged in possession of marijuana, making a false official statement, and conspiring against another soldier. Sanity is not an issue. He was sent a notice of proposed adverse action on 23 October 2020, to which he failed to respond. He failed to show sufficient reason why the bars to benefits should be set aside. c. An El Paso County 409th Judicial District Court discharge from Community Supervision stating the applicant has complied with the terms and conditions of his community supervision. He completed 29 months of his community supervision. On 1 December 2020, the applicant was placed on community supervisor for a period of 10 years for the offense of injury to a child with intent of bodily injury. The applicant was discharged from community supervision on 26 May 2023. 21. Based on the applicant's contention the Army Review Boards Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 22. 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. 23. Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 24. 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. 25. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting, in effect, an honorable physical disability separation in lieu of his UOTHC discharge. He contends PTSD and Other Mental Health Issues are related to his request. 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 9 July 2018; 2) An El Paso Police Department (EPPD) Incident/Investigation Report, dated 11 September 2019, shows police responded to a child endangerment call involving injuries to the applicant s 2 year old son and 5 week old daughter; 3) A DA Form 2873 (Military Protective Order) was issued on 13 September 2019 to be in effect until 31 October 2019 as a result of the applicant s spouse accusing him of domestic violence. It states the EPPD and Child Protective Services (CPS) are investigating this situation; 4) On 5 May 2020, the applicant was notified by his commander that action had been initiated to separate him for commission of a serious offense in that he wrongfully physically assaulted his two children. He also wrongfully possessed marijuana, made a false official statement and conspired against another Soldier; 5) The applicant was discharged on 26 June 2020 under the provisions of Army Regulation (AR) 635-200, paragraph 14-12C for misconduct c. The military electronic medical record (AHLTA), VA electronic medical record (JLV), ROP, and casefiles were reviewed. A review of AHLTA showed the applicant s first BH encounter, during service, occurred on 9 January 2019, at the Fort Bliss ED, whereby the applicant was escorted by his CoC with concerns of depressed mood and SI. The applicant reported depressed mood began the day before secondary to family stressors with daughter. During the session the applicant denied suicidal ideation, intent, and plan. Records suggest the provider diagnosed the applicant with Depression and referred him to BH for a post ED safety-check, which he attended the same day. During the safety-check the applicant reported having suicidal ideation w/o intent on 6 January 2019 related to home-sickness , personal issues with his daughter , and his grandfather s illness. He declined BH care and expressed a desire to be Chaptered out of the Army. Encounter note dated 15 January 2019 showed the applicant returned to the BH Clinic as a walk-in and reported a desire to engage in treatment and stay in the military. He denied any significant BH symptoms and inquired as to what BH services were offered. He was diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood and scheduled for follow-up. d. Encounter note dated 24 January 2019 showed the applicant reported he had a difficult childhood, with an abusive father and grandmother, and when his mother went to jail, [he] was placed in foster care , where he reportedly spent 9 years in and out of 13 foster homes, 2 lock downs, and 2 boy's homes . Encounter note dated 22 May 2019 showed the applicant reported sleep difficulty, trembling, and increased irritability, with onset occurring after the engine of the truck he was driving exploded, one month ago. He stated he was with his NCO at the time, and the NCO responded quickly to address the situation. Encounter note dated 28 June 2019 showed the applicant s diagnosis amended to reflect Adjustment Disorder with Mixed Disturbance of Emotion and Conduct, with a rule-out of Bipolar Disorder. The provider noted the applicant with a history of childhood abuse and reported mood liability characterized by depressed and anxious mood. Encounter noted dated 8 August 2019 showed the provider amended the diagnosis of record to reflect Bipolar Disorder. e. On 16 September 2019, the applicant attended a FAP intake visit, for suspected child abuse. Records showed the applicant s 1-month old daughter sustained six fractures and bruises and his 2-year-old sustained a bruise to his cheek. The applicant was the suspected perpetrator. During the session the applicant denied abusing the 2- month-old but admitted to biting the 2-year-old as a disciplinary action used when the child bites them. The applicant reported currently being on an MPO, that the children were currently in foster care, and that he was in the process of being separated from the military for disciplinary reason. He was diagnosed with Child Abuse, Suspected, Initial Encounter, and scheduled follow-up. Records showed the applicant did not attend follow-up visits with FAP and on 8 April 2020, his treatment session were terminated due to the applicant declining to attend, noting he was already receiving BH care. On 24 March 2020 the applicant underwent a Chapter 14 separation evaluation and was found to meet medical retention standard, that his BH diagnoses were not likely mitigating factors in his misconduct, that PTSD and TBI were not likely to constitute matters in extenuation of the basis of separation, and the applicant was psychiatrically cleared for administrative separation. The applicant remained in outpatient BH care until discharged. f. A review of JLV showed the applicant 0 percent SC for Bipolar Disorder. C&P Examination dated 8 June 2023 showed examiner determined the applicant met criteria for Bipolar Disorder and, as evidence, referenced the applicant s Initial PTSD DBQ, whereby he was diagnosed with Other Specified Trauma and Bipolar I Disorder. Additional evidence included diagnoses of Adjustment Disorder with Anxiety, Adjustment Disorder with Mixed Disturbance in Emotion and Conduct, Adjustment Disorder with Mixed Anxious and Depressed Mood, and Bipolar Disorder unspecified, diagnosed during military service. Initial PTSD DBQ dated 22 September 2021 showed the applicant did not meet diagnostic criteria for PTSD but did meet criteria for Other Specified Trauma Disorder associated with him being the driver of a truck when the vehicle s engine exploded, and Bipolar I Disorder. The provider noted the applicant s Bipolar Disorder was something that would have occurred whether [the applicant] were in service or not , given his family history of Bipolar Disorder, but it did occur during service . g. The applicant s initial BH treatment encounter with the VA appears to have occurred at the El Paso, TX, VA on 31 May 2022, whereby he presented with complaints of a major depressive episode. The applicant reported having recently relocated to the area and was in need of medication and mental health service. He reported anxiety, depression, anger, and sleep difficulty with onset in 2019. He reported being diagnosed with Adjustment Disorder and Bipolar Disorder during service but didn t believe the Bipolar Disorder diagnosis was correct. He also reported a history of BH treatment from a community BH provider in Utah over the past 3 year, who diagnosed with PTSD. The current provider diagnosed the applicant with Bipolar Disorder, by history, and noted a need for further evaluation to confirmed the diagnosis. JLV was void of any BH treatment encounters after the 31 May 2022 encounter. h. The applicant is requesting, in effect, a physical disability separation and contends PTSD and Other Mental Health Issues are related to his request. A review of the records showed the applicant diagnosed with Bipolar Disorder, Adjustment Disorder with Depressed Mood, Adjustment Disorder with Mixed Disturbance of Emotion and Conduct, and Child Abuse Suspected, during service. Post-service records showed the applicant 0 percent SC for Bipolar Disorder. Records are void of documentation supporting a diagnosis PTSD. Although the applicant was diagnosed with Bipolar Disorder during and after service, and diagnosed with various other BH diagnoses during service. There is no evidence in the record that at the time of separation the applicant s diagnoses required referral for MEB. The applicant s records are void of a P3 profile and there is no indication the applicant met MRDP for any diagnosis. Given the above, there is no evidence to support a physical disability separation. Additionally, although the applicant was diagnosed with Bipolar Disorder, the associated symptoms described in the applicant s records would not result in his inability to differentiate between right and wrong and adhere to the right and therefor misconduct characterized by physical assault of two children, making a false official statement, and conspiring against another Soldier are not mitigated by the disorder. Possession of marijuana would be mitigated if for personal use, given the nexus between Bipolar Disorder and comorbid substance abuse/misuse. i. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant had an experience or condition during his time in service, however, there is no evidence the disorder should have resulted with a physical disability retirement. Additionally, the condition provided only partially mitigation for the applicant s misconduct. 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 0 percent SC for Bipolar Disorder and was diagnosed with Bipolar Disorder during service. (2) Did the condition exist or experience occur during military service? Yes. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. A review of the records showed the applicant diagnosed with Bipolar Disorder, Adjustment Disorder with Depressed Mood, Adjustment Disorder with Mixed Disturbance of Emotion and Conduct, and Child Abuse Suspected, during service. Post-service records showed the applicant 0 percent SC for Bipolar Disorder. Records are void of documentation supporting a diagnosis PTSD. Although the applicant was diagnosed with Bipolar Disorder during and after service, and diagnosed with various other BH diagnoses during service. There is no evidence in the record that at the time of separation the applicant s diagnoses required referral for MEB. The applicant s records are void of a P3 profile and there is no indication the applicant met MRDP for any diagnosis. Given the above, there is no evidence to support a physical disability separation. Additionally, although the applicant was diagnosed with Bipolar Disorder, the associated symptoms described in the applicant s records would not result in his inability to differentiate between right and wrong and adhere to the right and therefor misconduct characterized by physical assault of two children, making a false official statement, and conspiring against another Soldier are not mitigated by the disorder. Possession of marijuana would be mitigated if for personal use, given the nexus between Bipolar Disorder and comorbid substance abuse/misuse. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant s contentions, the military record, and regulatory guidance. The Board agreed that although the applicant was diagnosed with Bipolar Disorder during and after service and other Behavioral Health diagnoses during service, evidence is insufficient to support he had a condition that would have required a referral to the Medical Evaluation Board. Further, the Board found that the diagnosis of Bipolar Disorder would not impede him from differentiating right and wrong and adhering to the right; therefore, it cannot be considered mitigating in regard to the misconduct. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined 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. Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action was to be to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was or could be authorized for that same or relatively similar offense under the UCMJ. b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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 (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. 3. Title 38 U.S. Code, Section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 4. Title 38 U.S. Code, Section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 5. 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. 6. 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. 7. Section 1556 of Title 10, U.S. 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. 8. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000104 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1