IN THE CASE OF: BOARD DATE: 23 August 2023 DOCKET NUMBER: AR20230000627 APPLICANT REQUESTS: in effect, * an honorable physical disability discharge * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * two DD Forms 149 (Application for Correction of Military Record) * page one of a Department of Veterans Affairs (VA) Rating Decision * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * birth certificate FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states when he [separated] they gave him an under honorable discharge and actually [should have] given him a medical discharge because during training as an infantryman he developed hearing loss as determined by the doctor in the Army in his last evaluation before deployment to Vietnam. The VA examined him and determined that his hearing loss developed during his time in training. All of his training was using explosives and the M-14 rifle, pistols, grenades and rocket launchers. Due to these reasons, the doctor determined that he was not fit to leave for Vietnam with his unit and proceeded to issue him a general discharge, not a medical discharge. 3. The applicant was inducted in the Army of the United States on 26 May 1964. His DD Form 47 (Record of Induction) shows he was 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. 4. The applicant was ordered to report to Fort Buchanan, PR effective 27 May 1964. He was transferred to Fort Gordon, GA on 17 June 1964. 5. A psychiatric examination of the applicant was conducted on 8 September 1964 by the Mental Hygiene Consultation Service resulting in recommendation of administrative separation. They determined the applicant has no disqualifying mental defect sufficient to warrant disposition through medical channels; was mentally responsible; and was able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in administrative proceedings. a. The diagnosis was found to be: (3210) emotional instability, chronic, severe; manifested by repeated complaints and sick call visits in the absence of positive physical findings, “nervousness”, tremulousness, insomnia, loss of appetite, inability to adjust to military environment in spite of prolonged and intensive command counseling, cadre supervision and extra training, no motivation to serve his country, impaired insight and judgment. b. Stress: Undetermined. c. Predisposition: Marked; lifelong problem with similar behavior pattern, family history of mental illness, previous complaints of "nervousness" existing since age six which he neglected to indicate on SF 89 dated 10 March 1964, and inadequate scholastic, industrial and social adaptation. d. Impairment for further military duty: Marked; this character structure appears deeply ingrained and beyond the scope of rehabilitative efforts in a military environment. LD (line of duty): No, EPTS (existed prior to service). 6. A memorandum, with the subject: Recommendation for Administrative Elimination Action, dated 11 September 1964, shows the applicant was recommended for administrative elimination action under the provisions of AR 365-209. The company commander, 1SG, Platoon SGT and Duty NCO had counselled the applicant to great length in an attempt to instill pride of accomplishment in order to overcome his nervousness. When all efforts proved fruitless, evaluation was requested at MH (mental hygiene). The resultant report supported this recommendation. 7. A Statement of Waiver, dated 11 September 1964, shows the applicant was counselled and notified by his commander that he was recommending him for a discharge under AR 635-209 because of emotional instability and inability to adjust to military environment. He was advised he was entitled to the opportunity of requesting counsel; to a hearing before a Board of Officers, and to submit statements on his own behalf. He acknowledged he had been furnished copies of the commanding officer's report, statements submitted to support the recommendation for discharge, and the names of prospective witnesses to appear or to submit statements to be used against him. He also acknowledged military counsel had been made available to him and he elected to refuse it. He elected to waive his right to a hearing before a Board and did not submit statements on his own behalf. He understood if the discharge authority approved the recommendation for his discharge, they would determine the type of discharge to be issued and he would not be given another opportunity to appear before a Board of Officers before being discharged. He understood if a General Discharge was issued to him such discharge may be under honorable conditions, however, he may expect to encounter prejudice in civilian life and situations where the quality of service rendered in the Armed Forces, or the type of discharge received therefrom may have a bearing. 8. The following statements were provided to support the applicant’s elimination from service: a. SGT ’s statement of 21 September 1964, is as follows: [the applicant] shows little interest in training, he is a chronic complainer. He shows noticeable lack of communication with other members of his squad and platoon. This could be due, at least in part, to lack of common national background with all but a few individuals. [The applicant] tends to avoid responsibility most if the time, but if it is presented to him directly he will accept it in most cases. He manages to keep his personal appearance and living area up to par with other members of his squad and seems to show little discourtesy to the trainee leaders of the platoon. He will carry out orders in most cases to the best of his ability and will do so without being prodded. He shows common sense and at least a normal ration of intelligence. It is felt that his inability to adjust to military environment is beyond the scope of rehabilitation. b. 2LT statement of 21 September 1964, is as follows: [the applicant] has for reason of safety and order been restricted to area and on occasion been under surveillance. c. 1SG statement of 21 September 1964, is as follows: [the applicant] came to his attention during first few days of counselling trainees of this cycle. He was extremely nervous, could not sleep and apparently upon retiring his condition approaches that of a seizure. Treatment at FGAH resulted in appointments at Hospital for more intensive tests. Because of his inability to withstand the firing of weapons and adjust to military environment he was evaluated by Mental Hygiene Clinic and the resultant supporting report forms a part of basic recommendation. [The applicant] has not actually been a disciplinary problem. His problem is [he] cannot comply, instead of will not comply. He does not feel that rehabilitation can be accomplished. d. 2LT statement of 24 September 1964, is as follows: It is recommended that [the applicant] be eliminated from the service under provisions of AR 635-209 for reason of unsuitability. [The applicant] is a very nervous individual, a chronic complainer who has a family background of mental illness. He complains of severe headaches and has had brain wave tests which referred him to mental hygiene. Resulting report is a part of basic recommendation. He feels that [the applicant] cannot benefit the service by being retained. Therefore, he recommends elimination UP of AR 635-209. 9. On 30 October 1964, the applicant indicated there had been no change in his medical condition since his last medical examination on 28 October 1964. 10. The applicant was discharged on 30 October 1964 under the provisions of AR 635- 209 with a character of service of under honorable conditions. 11. The applicant provided the first page of his VA rating decision dated 23 June 2022 showing he is service connected for: * migraines, 30 percent * tinnitus, 10 percent * bilateral hearing loss, 0 percent 12. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 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 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. 16. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 17. 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, his previous denial, 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 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 in essence requesting referral to the Disability Evaluation System. He states: “When I retired, they gave me an under honorable discharge and actually they gave me a medical discharge because during training as an infantryman I developed hearing loss. The Veterans Administration examined me and determined that my hearing loss developed during my time in training. For this reason, I request that my discharge be changed to medical discharge.” c. The Record of Proceedings and the previous denial detail the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 26 May 1964 and was discharged under honorable conditions (general) on 30 August 1964 under the provisions provided in AR 635-209, Personnel Separations – Discharge: Unsuitability (30 April 1964). The separation program number 264 denotes the reason for separation as “Unsuitability, character and behavioral disorders.” d. Because of the period of service under consideration, there are no encounters in AHLTA or documents in iPERMS. There are no entries in JLV. e. On 11 September 1964, the applicant underwent an evaluation by a military psychiatrist who determined the applicant did not have a disqualifying mental defect and then recommended the applicant be administratively separated. He wrote: “The diagnosis was found to be: (3210} Emotional instability, chronic, severe; manifested by repeated complaints and sick call visits in the absence of positive physical findings, "nervousness,” tremulousness, insomnia, loss of appetite, inability to adjust to military environment in spite of prolonged and intensive command counseling, cadre supervision and extra training, no motivation to serve his country, and impaired insight and judgment. Stress: Undetermined. Predisposition: Marked; lifelong problem with similar behavior pattern, family history of mental illness, previous complaints of "nervousness" existing since age six which he neglected to indicate on SF 89 dated 10 Mar 64, and inadequate scholastic, industrial and social adaptation. Impairment for further military duty: Marked; this character structure appears deeply ingrained and beyond the scope of rehabilitative efforts in a military environment.” f. A similar conclusion was reached by SGT in his 21 September 1964 memorandum: “It is felt that his inability to adjust to military environment is beyond the scope of rehabilitation.” g. From his First Sergeant’s 21 September 1964 memorandum: Pvt [Applicant] came to my attention during first few days of counselling trainees of this cycle. He was extremely nervous, could not sleep and apparently upon retiring his condition approaches that of a seizure. Treatment at FGAH resulted in appointments at Wood Hospital for more intensive tests. Because of his inability to withstand the firing of weapons and adjust to military environment he was evaluated by Mental Hygiene Clinic and the resultant supporting report forms a part of basic recommendation.” h. The is no evidence the applicant had a service incurred mental health or other medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his separation. 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 separation. i. Review of his records in JLV shows he has been awarded several VA service- connected disability ratings, including 10% for tinnitus and 0% for impaired hearing. 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. j. It is the opinion of the Agency medical advisor there is no medical condition upon which to recommend a referral to the DES. 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 no medical condition upon which to recommend a referral to the DES. The Board noted, based on the medical opine, there is no evidence the applicant had a service incurred mental health or other medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his separation. In addition, the Board agreed there was insufficient evidence to show the applicant was unable to reasonably perform the duties of his office, grade, rank, or rating prior to his separation. Based on this, the Board denied relief. 2. 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. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-209 (Personnel Separations-Discharge Unsuitability) establishes the policy and provides procedures and guidance for the prompt elimination of enlisted personnel who are determined to be unsuitable for further military service. a. Action will be taken to discharge an individual for unsuitability only -when it is clearly established that: (1) It is unlikely that the individual will develop sufficiently to participate in further military training and/or become a satisfactory soldier. Or (2) The individual's psychiatric or physical condition is such as not to warrant discharge for disability. b. Continued effort and attention will be given to the screening and elimination of unsuitable enlisted personnel. An individual who, after reasonable attempts have been made to reclassify and reassign him, does not possess the required degree of adaptability for military service is considered to be inapt. A person who fails to attain minimum standards of performance in military subjects while undergoing training may be considered for elimination without further attempts to reclassify or reassign him. c. Individuals will be discharged by reason of unsuitability, with an honorable or general discharge as warranted by the individual’s military record. Such discharge will be effected when it has been determined that an individual is unsuitable for further military service because of: inaptitude, character and behavior disorders, apathy (lack of appropriate interest), enuresis, alcoholism, or homosexuality. 3. 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. 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 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. 6. 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. 7. 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. 8. Section 1556 of Title 10, USC, 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. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000627 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1