IN THE CASE OF: BOARD DATE: 29 August 2023 DOCKET NUMBER: AR20230000406 APPLICANT REQUESTS: in effect a 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) • handwritten military sexual trauma (MST) statement • Department of Veterans Affairs (DVA) letter, 29 October 2018 • DVA decision letter, 21 May 2005 • information in support of claim for service connection for post-traumatic stress disorder (PTSD) • applicant memorandum • statement in support by D.B. • statement in support by V.M.B. • summary of benefits letter, 10 February 2021 • Orders 06-075-00003, 16 March 2006 • DD Form 214 (Certificate of Release or Discharge from Active Duty), 20 July 2004 • Summary of benefits letter, 11 February 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 she was being treated for PTSD and MST in San Diego while trying her best to complete reserve training with the 341st Military Police unit in Mountain View, CA. After being sexually assaulted by peers in the applicant's unit, the applicant did not want to work with them anymore. The applicant has a TBI that was undiagnosed then, and could not keep up with the paperwork, so they kicked her out. a. In a handwritten MST statement, the applicant states in 2001 before deploying to Hungary in a field training exercise she slept in the back of a truck with her squad. One of the guys pulled her pants down and after everyone fell asleep and raped her. She was afraid he would hurt her if she made any noise or told anyone. b. In 2003 at Talil Air Base she was hanging out with friends, and someone put something in her drink. She came to because her head was hitting the metal dashboard of an Army 5-ton truck and some guy from another unit was raping her. She said stop please and blacked out again. She does not know how she got back to the tent that night. She found him the next day and told him he was wrong for what he did and left it at that. c. In a memorandum for record she stated on 3 August 2003, her convoy was ambushed by an unknown number of insurgents. 3. The applicant enlisted in the U.S. Army Reserve (USAR) on 7 February 2000. She held military occupational specialty (MOS) 31B (Military Police). 4. She was ordered to active duty on 15 March 2003, in support of Operation Enduring Freedom/Iraqi Freedom. Her duration of service in Iraq is unknown. She was released from active duty on 20 July 2004. 5. The applicant provides DVA decision letter, 21 May 2005, which shows her following conditions which were granted service connection effective 21 July 2004: • PTSD rated at 30% • lumbosacral strain (LS) rated at 10% • right knee strain rated at 10% • left knee strain rated at 10% • tinnitus rated at 10% • gastroesophageal reflux disease rated at 10% 6. On 28 July 2005, she received a retention physical. A Standard Form 507 (Clinical Record) shows the examiners finding of PTSD – LS. 7. She was issued a permanent physical profile on 31 August 2005, for asthma, PTSD, and back pain-lumbar spine strain. Her PULHES shows as 213112. Block 10 states unable to deploy to areas where psychological treatment is not available. 8. Medical Record shows the following: • 24 October 2005, asthma, PTSD, back pain • 27 October 2005, sent service member (SM) additional information letter • 10 January 2006, SM failed to comply with request for additional information, based on information obtained from physical examination, SM meets medical retention standards requires Medical MOS Retention Board for back pain; no limitation with asthma and PTSD 9. Orders 06-075-00003, issued by Headquarters, 63d Regional Readiness Command, Los Alamitos, CA, on 16 March 2006, shows the applicant was discharged from the USAR effective 15 April 2006, with an under honorable conditions (general) discharge. 10. The applicant provides DVA letter, 29 October 2018, from the MST Coordinator attempting to contact her regarding a consult that was placed for her by a social worker at the Veterans Affairs (VA). The consult was regarding learning about and accessing MST services offered by the Roseburg VA Healthcare System. 11. The applicant provides Summary of benefits letter, 10 February 2021, showing she was service-connected evaluation rated at 90% effective 1 December 2020. She was being paid at the 100% rate because she is unemployable due to her service-connected disabilities. She was also considered to be totally and permanently disabled. 12. An Army Discharge Review Board (ADRB) convened on 1 March 2021. The ADRB determined the applicant’s discharge was inequitable due to the applicant's PTSD related to MST fully outweighing the applicant's misconduct of unsatisfactory participation, which is the accepted basis for separation. Her discharge was upgraded to honorable. 13. The applicant provides another summary of benefits letter, 11 February 2022, with in increase in payment effective 1 December 2021. 14. Orders 23-038-000103a, issued by Headquarters, U.S. Army Reserve Command, Fort Bragg, NC, on 7 February 2023, shows Orders 06-075-00003, issued by Headquarters, 63d Regional Readiness Command, Los Alamitos, CA, on 16 March 2006, were revoked. 15. Orders 23-038-000104a, issued by Headquarters, U.S. Army Reserve Command, Fort Bragg, NC, on 7 February 2023, shows her discharge was honorable effective 15 April 2006. 16. The applicant provides: a. Information in support of claim for service connection for PTSD which was submitted to the DVA as a part of her claim. b. Statement in support by D.B. (Father) explaining the applicant’s failed relationships since returning from deployments from both Hungary in 2001 and Iraq in 2004. He explains her abuse of alcohol, pain from injuries, mental health, and financial struggles. The entire letter is available for the Board’s review. c. Statement in support by V.M.B. addressing the applicant’s actions related to an ambush on 13 August 2003, in Batha Iraq. This letter only covers the ambush on that date. It does not cover the continuous mortar attacks sustained by the 341st MP Company at LSA Anaconda November 2003 through June 2004. The entire letter is available for the Board’s review. 17. There is no evidence of a medical evaluation board proceeding in the available service record. 18. 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. 19. 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. 20. 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. 21. 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 (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant has applied to the ABCMR requesting, in essence, a referral to the Disability Evaluation System. She states: “I was being treated for PTSD and MST [military sexual trauma] in San Diego while doing my best to complete training with the 341st MP [military police] unit in Mountain View, CA. After being sexually assaulted by some guys in my unit, I didn’t want to work with them anymore. I have a TBI [traumatic brain injury] that was undiagnosed then and couldn’t keep up with the paperwork so they kicked me out.” c. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. Her original discharge orders published by the 63rd Regional Support Command show she was discharged under honorable conditions (general) on 15 April 2006 under the authority of AR 135-178, Separation of Enlisted Personnel (19 July 2005). The orders do not cite a chapter or paragraph. d. On 22 February 2021, the applicant applied to the ADRB for a discharge upgrade given her history or military sexual trauma while in the Army and the later development of PTSD (AR20210009209). On 27 December 2022, the ADRB granted her request, upgrading her characterization of service to Honorable and changing her discharge authority to Chapter 13 of AR 135-178: Unsatisfactory Participation in the Ready Reserve. e. In their Case Report and Directive for AR20210009209, the ADRB stated the reason for her discharge was unknown: “The applicant's AMHRR [Army Military Human Resource Record] is void of the specific facts and circumstances concerning the events which led to the applicant's discharge from the United States Army Reserve. The applicant's AMHRR does contain a properly constituted discharge order: Orders 06-075-00003, dated 16 March 2006. The order indicates the applicant was discharged under the provisions of AR 135-178, with a characterization of service of general (under honorable conditions).” f. The applicant’s enlistment contract was not submitted with the case file or uploaded into iPERMS. g. A VA ratings decision shows she was awarded multiple VA service-connected disability ratings effective 4 July 2004: PTSD (30%), lumbosacral strain (10%), right knee strain (10%), left knee strain (10%), tinnitus (10%), GERD (10%). h. The applicant underwent a retention medical evaluation on 28 July 2005. The applicant noted on her Report of Medical History that she was taking Excedrin, Aleve, Pepcid, and Lactase; was receiving VA disability benefits for “back, knees, and PTSD, tinnitus;” and listed having had or currently having multiple medical issues/concerns. On the accompanying Report of Medical Examination, the provider documented a normal examination and noted she had five medical conditions: Lumbosacral strain, asthma, left shoulder strain, gastroesophageal reflux disease [GERD], and patellofemoral pain syndrome [PFPS] in both knees. He subsequently recommended she continue her exercise program and determined she was qualified for further service. i. No additional probative medical documentation was submitted with the application and there are no encounters in AHLTA. j. There is insufficient probative evidence the applicant had any duty incurred medical condition which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. k. Review of her records in JLV shows she continues to have multiple VA service-connected disabilities, including PTSD (now 70%), migraine headaches (30%), and those she had previously. However, the DES only compensates an individual for service incurred medical 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. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. l. There is no evidence the applicant had a service incurred medical condition which resulted in either early career termination or prevented her from reenlisting. It is the opinion of the ARBA medical advisor that a referral of her case to the DES is unwarranted. m. Because the applicant’s separation authority was essentially downgraded by the ADRB in AR20210009209, it is recommended ORDERS 23-038-000104a (7 February 2023) be revoked and new orders published showing her separation authority as “Secretarial Authority.” 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 applicant’s contentions, the military record, and regulatory guidance were carefully considered. The evidence shows the applicant served in the USAR from 7 February 2000 to 15 April 2006, when she was discharged from the USAR with an honorable discharge (upgraded by the ADRB). The Board reviewed and was persuaded by the medical advisor’s finding insufficient probative evidence the applicant had any duty incurred medical condition which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. Finally, unlike a DD Form 214 that lists the specific narrative reason for separation, enlisted Reserve discharge orders only list the governing regulation (AR 135-178) on the discharge orders. 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 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. 8/29/2023 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 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 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. 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. 5. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. 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. 7. 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 under other than honorable conditions, 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. 8. 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; sexual harassment. Boards were directed 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. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 9. 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. 10. 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//