IN THE CASE OF: BOARD DATE: 22 August 2023 DOCKET NUMBER: AR20230000782 APPLICANT REQUESTS: in effect, correction of his narrative reason for separation to show he was discharged or retired due to a disability vice being separated due to completion of his required active service APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149, Application for Correction of Military Record • Standard Form 600, Health Care-Chronological Record of Medical Care, 30 August 2022 • Armed Forces Health Longitudinal Technology Application (AHLTA) records, 27 September 2022 to 14 October 2022 • Health Artifact and Image Management Solution records, 7 October 2022 • Prescription List, undated FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, during his period of service it was a stigma to seek mental health treatment. However, he eventually sought help through the Embedded Behavioral Health (EBH) Clinic located within his combat brigade at Fort Campbell, KY. He was diagnosed with post-traumatic stress disorder (PTSD) and a panic disorder prior to being released from active duty at his expiration term of service (ETS). His psychologist urged him to request a change to his narrative reason for separation. He further contends that due to the severity of his condition, he should have been evaluated by a medical board. 3. A review of the applicant’s record shows he enlisted in the Regular Army on 23 February 2015 and he held military occupational specialty (MOS) of 11B, infantryman. 4. His Enlisted Record Brief shows he served in Kuwait (15 March 2019 to 18 November 2019) and Cameroon (22 January 2017 to 29 June 2017). 5. His record contains a DA Form 2166-9-2, Noncommissioned Officer Evaluation Report (SSG-1SG/MSG) for the period 25 August 2020 through 24 August 2021 while assigned to a rifle Company at Fort Campbell. During this period the applicant performed the duties of a squad leader. He received ratings of “Exceeded Standard” for his overall performance and “Highly Qualified” for his overall potential. 6. His record is void of permanent profile, or referral to a medical board, related to the applicant’s physical or mental health condition. 7. On 16 October 2022, the applicant was released from active duty. His DD Form 214 shows: • he held the rank/pay grade of staff sergeant/E-6 at the time of separation • the separation authority as “AR 635-200” (Active Duty Enlisted Administrative Separations) • the narrative reason for separation was “COMPLETION OF REQUIRED ACTIVE SERVICE” 8. On 14 February 2023, he was discharged from the USAR. 9. The applicant provides several medical records. a. A Standard Form 600, 30 August 2022, which shows that the applicant was seen at the EBH for severe panic attacks and loss of interest. He sought treatment because his wife threatened to leave him if he did not get checked out. The applicant reported that he had not come to Behavioral Health sooner due to being in the infantry and the stigma of seeking mental health. The applicant received a differential diagnosis of alcohol dependence, bipolar disorder, and anxiety disorder. This treatment record further shows: • his prognosis was fair, however he was not fully assessed due to nature of the session • he was released without limitations and advised of emergency procedures • he was able to carry and fire a weapon, from a psychiatric perspective • he was able to have access to sensitive information (at current clearance) • he was able to deploy, from a behavioral health perspective • he was able to perform his MOS • he was considered fit for duty (FFD); however, he would require a waiver to deploy or had/needed a behavioral health profile • he was NOT referred to a Medical Evaluation Board for physical or behavior health conditions • further evaluation/consultation was required for FFD determination/ability to remain in deployed environment b. An AHLTA record which shows, in part, he was initially diagnosed with an anxiety disorder, on 28 September 2022 and PTSD on 4 October 2022. c. Additional medical records that show the applicant was treated for lower back pain. He also provided a list of his current medications. 10. Regulatory guidance states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. 11. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 12. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 13. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting a correction of his narrative reason for separation to show he was discharged or retired due to a disability. 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 in the Regular Army on 23 February 2015; 2) The applicant served in Kuwait from 15 March-18 November 2019 and Cameroon from 22 January-29 June 2017; 3) On 16 October 2022, the applicant was honorably released from active duty due to completion of active service. On 14 February 2023, the applicant was discharged from the USAR. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also reviewed. d. The applicant states he incurred PTSD and panic disorder during his enlistment, which he contends warrants a change to his narrative reason for his separation due to the severity of his condition. In addition, he should have been referred to IDES. The applicant was initially seen by behavioral health services on 02 Sept 2022. He reported depression, anxiety, and panic attacks. He also reported significant alcohol abuse, but he refused substance abuse treatment at that time. The applicant was seen for six outpatient psychotherapy appointments prior to his discharge, and he was diagnosed with anxiety disorder, unspecified and PTSD. He was also prescribed psychiatric medication starting on 04 October 2022. The applicant was repeatedly found fit for duty, and not recommended for a referral to a med board. He was not placed on profile for a psychiatric condition, and he was not admitted into inpatient psychiatric treatment. Prior to end of his enlistment, he was recommended for continued behavioral health care at the VA, and he was assisted in obtaining services. However, he was described as improving after his short time in behavioral health therapy while on active service. e. A review of JLV provided evidence that the applicant has been treated for various behavioral health concerns since leaving active service. He was diagnosed with a service-connected mood disorder (70%) by the VA in October 2022. f. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence applicant has a history of an anxiety disorder, which occurred on active duty. However, there is insufficient evidence the applicant was unable to complete his military duties at that time or the severity of his behavioral health condition during his active service caused him to not meet retention standards. Therefore, a referral to IDES is not warranted at this time. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant has been diagnosed with the following potentially mitigating BH conditions: anxiety disorder, unspecified and PTSD. (2) Did the condition exist or experience occur during military service? Yes, the VA’s granting of service connection for a mood disorder (70%) establishes it occurred during military service. In addition, there is clear evidence in JLV and the applicant’s military medical record the applicant was reporting symptoms of an anxiety disorder and PTSD shortly before leaving active service. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is sufficient evidence the applicant has a history of an anxiety disorder, which occurred on active duty. However, there is insufficient evidence the applicant was unable to complete his military duties at that time or the severity of his behavioral health condition during his active service caused him to not meet retention standards. Therefore, a referral to IDES is not warranted at this time. 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 was separated due to completion of his required active service. The Board reviewed and was persuaded by the medical officer’s finding evidence the applicant has a history of an anxiety disorder, which occurred on active duty; however, there is insufficient evidence the applicant was unable to complete his military duties at that time or the severity of his behavioral health condition during his active service caused him to not meet retention standards. Therefore, the Board determined his referral to integrated disability evaluation system (IDES) is not warranted. 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. 8/22/2023 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 Army Board for Correction of Military Records (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) 635-40, Physical Evaluation for Retention, Retirement, or Separation, establishes the PDES and sets forth the policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It states that after establishing the fact that a Solider is unfit because of a physical disability, and that the Soldier is entitled to benefits, the PEB must decide the percentage rating for each unfitting disability. The VASRD, as modified in the regulation, is used to establish this rating. This regulation states: 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 service. b. The mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. c. Rating disabilities which are neither unfitting nor contribute to the physical unfitness of a Soldier is prohibited. d. 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. e. 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 Solder is found unfit because of another condition that is disqualifying. f. Permits for permanent retirement when the disability is rated at 30 percent or more under VASRD, or the Solder has at least 20 years of active Federal service. 3. Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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. 5. Title 10, U.S. Code, section 1556 of, 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. 6. AR 15-185, Army Board for Correction of Military Records, prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS//