IN THE CASE OF: BOARD DATE: 30 August 2023 DOCKET NUMBER: AR20230000339 APPLICANT REQUESTS: in effect, physical disability separation or retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 * Department of Veterans Affairs (DVA) letter, 4 October 2022 * DVA letter, 21 November 2008 * DVA letter, 4 April 2009 * The Bradley Center medical records, 6 March 2008 * Chronological Record of Medical Care, 20 September 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 he received treatment for mental health conditions during his active-duty service at Martin Army Community Hospital and the Bradley Center. He has attached medical records showing he was treated while on active duty. He was discharged for these conditions, however, did not receive a medical board or a medical discharge. Later the Veterans Affairs (VA) evaluated his conditions and determined they are indeed service connected. This led to him being awarded compensation and pension which went into effect the day after he left service. He feels that there is significant evidence to show that his service-connected disabilities were the reason for his discharge, and he is requesting that his DD Form 214 be corrected to show his narrative reason for discharge is for a service-connected disability. 3. The applicant enlisted in the Regular Army on 27 July 2007. 4. He was counseled on 10 February 2008, for physical and mental condition. He was notified if this conduct continues, actions may be initiated to separate him from the Army under the provisions (UP) of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations). 5. On 13 February 2008, the applicant had a Report of Mental Status Evaluation conducted. The provider stated the applicant had the mental capacity to understand and participate in the proceedings, he was mentally responsible, met the retention requirements of Chapter 3, AR 40-501 (Standards of Medical Fitness). The provider also noted: a. The applicant was evaluated at the Bradley Center on 13 February 2008, and all available records were reviewed. The soldier remains hospitalized at the time of this recommendation. Based on the psychiatric assessment, the diagnosis was: Axis I: Adjustment disorder with depressed mood. b. Given the above diagnosis and the symptoms the Soldier was experiencing, including significant depressed mood and suicide attempt via cutting his wrists of such severity as to require inpatient hospitalization, it is recommended that this Soldier be given an expeditious administrative separation in accordance with (IAW) AR 635-200, Chapter 5-17. This disorder is so severe that the soldier's ability to function effectively in the military environment is significantly impaired. Despite ongoing psychiatric treatment, it is unlikely he would ever be able to resume being a productive member of the military. He remains a liability to Command for as long as he is in the Army. c. This diagnosis does not require disposition through medical channels, and he is medically and psychiatrically cleared for any administrative action deemed appropriate by Command. He is mentally responsible, able to distinguish right from wrong and to adhere to the right and has the mental capacity to understand and participate in legal/disciplinary proceedings. 6. On 15 February 2008, his immediate commander-initiated action to separate him for other designated physical or mental conditions. The reason(s) for his commander’s proposed action: Separation for Adjustment Disorder, related continuing deficiencies in conduct, and performance as follows: depression. The applicant acknowledged receipt of notification for separation. 7. The applicant was afforded the opportunity to consult with counsel for consultation, or military counsel of his own choice, if he or she is reasonably available, or civilian counsel at his own expense. He declined the opportunity; after which his commander advised him of his rights and encouraged him to reconsider his decision to decline basis for the contemplated action to separate him for Other designated physical or mental conditions, under AR 635-200, Chapter 5, and its effects; of the rights available to him; and of the effect of any action taken by him in waiving his rights. 8. On 15 February 2008, his chain of command recommended that he be separated from the U.S. Army prior to expiration of his term of service with an honorable characterization of service. 9. On 23 February 2008, legal review the case and found it legally sufficient to support separation with an honorable characterization of service. 10. On 26 February 2008, the separation authority approved separation prior to the expiration of his current term of service, UP of AR 635-200, paragraph 5-17 for other designated physical or mental conditions. He directed an honorable character of service. 11. Accordingly, the applicant was honorably discharged on 6 March 2008. His DD Form 214 shows he completed 7 months and 10 days net active service this period. It also shows: * Item 25 (Separation authority): AR 635-200, paragraph 5-17 * Item 26 (Separation Code): JFV * Item 27 (Reentry Code): 3 * Item 28 (Narrative Reason for Separation): Condition, not a disability 12. The applicant provides: a. DVA letter, 4 October 2022, showing his summary of benefits rated at 100% combined service-connected disabilities effective 1 December 2021. b. DVA letter, 21 November 2008, showing he has service connection for bipolar disorder, claimed as depression and anxiety rated at 50% effective 7 March 2008. c. DVA letter, 4 April 2009, showing service connection for stress fracture, third digit metatarsal bones, right foot (claimed as right foot condition) is granted with an evaluation of 0% effective 7 March 2008. d. The Bradley Center medical records, 6 March 2008, showing he was a participant in the services at the Bradley Center of St. Francis Hospital from 10 February -6 March 2008. e. Chronological Record of Medical Care, 20 September 2007, which found a stress fracture of the distal third digit metatarsal with significant callus formation and periosteal reaction suggestive of active healing. The remainder of the osseous structures are normal in alignment with no other fractures identified. 13. 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. 14. 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. 15. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the DVA, 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 DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 16. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (EMR) (AHLTA and/or MHS Genesis), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting, in essence, referral to the Disability Evaluation System (DES). He stated: “I received treatment for mental health conditions during my active-duty service at Martin Army Community Hospital and the Bradley Center. I have attached medical records showing I was treated while on active duty. I was discharged for these conditions however did not receive a med board or a medical discharge. Later, the VA evaluated my injuries and determined they are indeed service connected. This led to me being awarded me comp and pen which went into effect the day after I left service (records attached). My current VA award letter is also attached. I feel that there is significant evidence to show that my service-connected disabilities were the reason for my discharge and I'm requested my DD-214 be corrected to show my narrative reason for discharge is for a service-connected disability.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of service under consideration shows he entered the regular Army on 27 July 2007 and received an uncharacterized discharge on 6 March 2008 under the separation authority provided by paragraph 5-17 of AR 635-200, Active Duty Enlisted Administrative Separations (6 June 2005): Other designated physical or mental conditions. His separation code JFV denotes “Condition, Not A Disability.” Paragraph 5-17a of AR 635-200: “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— (1) Chronic airsickness. (2) Chronic seasickness. (3) Enuresis. (4) Sleepwalking. (5) Dyslexia. (6) Severe nightmares. (7) Claustrophobia. (8) 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.” d. The applicant presented to the Martin Army Community Hospital Emergency Department on 10 February 2008 with suicidal ideation. Following his evaluation, he was diagnosed with “Bereavement without complications” and “Depression not otherwise specified” and was subsequently hospitalized. From the associated mental health encounter: “Patient reports that he has been depressed since his father died during Christmas exodus. He says that he returned from leave 10 days late. That he was restarted in BCT [basic combat training] once for a fractured foot and that he is being kicked out of the military for going AWOL [absent without leave]. He says that he has no place to else to go, that there is no one left that cares about him and that he is a failure. Patient reports that he wants to end his life and just get it over with.” e. On 13 February 2008, the applicant underwent a mental status evaluation while hospitalized. This provider diagnosed with acute adjustment disorder and recommended he be separated for same. From this encounter: “PVT [Applicant] was evaluated at the Bradley Center on 13 February 2008, and all available records were reviewed. The soldier remains hospitalized at the time of this recommendation. Based on the psychiatric assessment, the diagnosis is follows: Axis I: Adjustment disorder with depressed mood Given the above diagnosis and the symptoms the Soldier was experiencing, including significant depressed mood and suicide attempt via cutting his wrists of such severity as to require inpatient hospitalization, it is recommended that this Soldier be given an expeditious administrative separation IAW AR 635-200, Chapter 5-17. This disorder is so severe that the soldier's ability to function effectively in the military environment is significantly impaired. Despite ongoing psychiatric treatment, it is unlikely he would ever be able to resume being a productive member of the military. He remains a liability to Command for as long as he is in the Army. This diagnosis does not require disposition through medical channels, and he is medically and psychiatrically cleared for any administrative action deemed appropriate by Command. He is mentally responsible, able to distinguish right from wrong and to adhere to the right and has the mental capacity to understand and participate in legal/disciplinary proceedings.” f. On 15 February 2008, his company commander informed the applicant of the initiation of separation action under paragraph 5-17 of AR 635-200: “The reason(s) for my proposed action: Separation for Adjustment Disorder, related continuing deficiencies in conduct, and performance as follows: depression.” g. On 26 February 2008, the Brigade Commander approved his separation with an honorable characterization of Service. h. Review of his records in JLV show he had also been diagnosed with bipolar disorder. i. The applicant was discharged under paragraph 5-17 of AR 635-200 for acute adjustment disorder as provided for in 5-17a(8) and paragraph 3-36 of AR 40-501, Standards of Medical Fitness (29 August 2003). He may have been more appropriately separated for depression or even bipolar disorder under paragraph 5-11 of AR 635-200: Separation of personnel who did not meet procurement medical fitness standards. This most likely would have also resulted in an honorable discharge in March 2008. Paragraph 5-11a and 5-11b of AR 635-200: “Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on AD {active duty} or ADT {active duty for training} for initial entry training, may be separated. Such conditions must be discovered during the first 6 months of AD. Such findings will result in an entrance physical standards board [EPSBD]. This board, which must be convened within the soldier’s first 6 months of AD, takes the place of the notification procedure (para 2–2) required for separation under this chapter. b. Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by an appropriate military medical authority within 6 months of the soldier’s initial entrance on AD for RA or during ADT for initial entry training for ARNGUS and USAR that— (1) Would have permanently or temporarily disqualified the soldier for entry into the military service or entry on AD or ADT for initial entry training had it been detected at that time. (2) Does not disqualify the soldier for retention in the military service per AR 40– 501, chapter 3. As an exception, soldiers with existed prior to service (EPTS) conditions of pregnancy or HIV infection (AR 600–110) will be separated.” j. It is the opinion of the ARBA Medical Advisor that a referral of his case to the DES is not warranted. BOARD DISCUSSION: 1. 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 record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical review the Board concurred with the advising official finding that a referral of his case to the Disability Evaluation System (DES) is not warranted. Based on the medical opine, the Board determined there is insufficient evidence to support the applicant’s contention for a physical disability separation or retirement. Therefore, the Board denied relief. 2. The Board determined DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. 3. The Board agreed the VA applies its own polices and regulations to make service connection and rating determinations. It is not bound by determinations made by the Army. With that, unlike the VA, the Army’s determination of fitness and its mandatory application of VA ratings is a snapshot in time whereas the VA can make service connection and rating determinations throughout the veteran’s life. The VA provides post-service support and benefits for service-connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service-connected disabilities. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (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 a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (MOS) Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirements, 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. 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. c. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 4. AR 635-5-1 (Personnel Separations - Separation Program Designators (SPD)), in effect at the time, provided that: a. The SPD code of "JFV" is the correct SPD code for involuntary separations of enlisted personnel in accordance with Army Regulation 635-200, paragraph 5-17, for condition, not a disability. b. The SPD code of "JFR" is the correct SPD code for involuntary separations of enlisted personnel for disability, other. 5. Title 38 U.S. Code 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 U.S. Code 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. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent 8. 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. 9. 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) AR20230000339 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1