IN THE CASE OF: BOARD DATE: 29 August 2023 DOCKET NUMBER: AR20230000797 APPLICANT REQUESTS: in effect, an honorable physical disability discharge. 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) in lieu of DD Form 149 (Application for Correction of Military Record) • medical records (274 pages) 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 was injured in his knees and hip while in the Army. He was advised by the doctor he met that he should not do the training any further as his knees and hip was badly injured and knees were very weak at that time. His knees and hip still hurt and are week as well. He was mentally down but he continued with the training as much as he could do. His mental health, hip, and knees were getting worse while in the Army. For these reasons, he requests to upgrade his discharge for mental and physical medical conditions. He has been getting antidepressants for the last 8 years. 3. The applicant underwent a medical examination on 21 February 2014 for enlistment. His DD Form 2807-1 (Report of Medical History) shows he reported he was in good health with no defects. The corresponding DD Form 2808 (Report of Medical Examination) shows he was found qualified for service and assigned a physical profile of 111111. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 4. The applicant enlisted in the United States Army Reserve on 17 April 2014 for a period of 8 years. He entered initial active duty for training on 5 May 2014. 5. The applicant’s separation documents are not resident in his official military personnel file (OMPF). 6. The applicant was discharged 11 June 2014 under the provisions of Army Regulation (AR) 635-200, chapter 11 for entry level performance and conduct. His character service is uncharacterized. He was credited 1 month 7 days net active service this period. • Block 24 (Character of Service) Uncharacterized • Block 24 (Separation Authority) AR 635-200, chapter 11 • Block 26 (Separation Code) JGA • Block 27 (Reentry Code) 3 • Block 28 (Narrative Reason for Separation) Entry Level Performance and Conduct 7. The applicant provided 274 pages of his Department of Veterans Affairs medical records. 8. 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. 9. 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. 10. 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. 11. 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. 12. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant seeks medical discharge processing for hip and knee injuries. Accordingly, he requests a change in narrative reason for separation and reentry code. He contends that diagnoses PTSD and Other Mental Health conditions are related to his request. b. The applicant’s record was summarized in the ABCMR ROP. Of note, he was in service from 20140505 to 20140611. He did not deploy. He was discharged under provisions of AR 635-200, chapter 11 for entry level performance and conduct. His service was designated as uncharacterized. His separation code was JGA. c. On 23May2014, the 33-year-old applicant in week 2 of BCT, reported left knee pain and bilateral thigh pain for 1 week. He stated the pain began when running and he could no longer run longer than a few minutes before having pain. His pain level was 8/10. There was no known injury/trauma. The impression was that he was experiencing overuse injury. The exam showed tender left knee lateral patellar facet and medial tibial plateaus, and normal hip motion and strength. He was placed on profile. The bone scan confirmed stress reactions at both medial tibial plateaus (left greater than right) and a stress fracture at the right hip femoral neck. He was given crutches and referred to physical therapy. Ten days later, on 02Jun2014, he was reporting 2/10 pain at rest and 8/10 pain with activity. On that date, it was annotated that he was pending chapter 5-17 separation. • Three years after discharge from service (13Jan2017 VAMC Initial Assessment), the applicant presented to establish care at the VA. Of note, he reported chronic upper right leg, back, and bilateral knee pain. Films of the back, hips and knees showed no evidence of fractures. He was referred for physical therapy, but he deferred attending appointments in 2017. He cancelled the consultation for physical therapy in May 2022. • At the time of discharge, the applicant did not have a permanent L3 physical profile. The record was silent for treatment or rehab efforts between June 2014 and his presentation at the VA in January 2017. d. Behavioral health records. • There were no in-service behavioral health (BH) visits. During the 27May2014 TMC Ambulatory clinic visit, he screened negative for depression (PHQ-2 Depression Screen). No abnormalities were noted in the psychiatric exam while he was in military service and no behavioral health symptoms were reported. • Three years after discharge from service, the applicant reported feeling anger and not feeling 100% as he used to. He was employed fulltime in accounts for a construction company. The PHQ-9 score was 13 (10-14 is consistent with moderate symptoms). The GAD-7 score 11 (10-14 is consistent with moderate symptoms). There was no suicide ideation, no history of suicide attempts or psychiatric hospitalizations. No PTSD symptoms were reported. He was not on psychotropic medication. Diagnosis: Major Depression, and Moderate to Severe Anxiety. In the 10Feb2017 Mental Health Initial Evaluation Note, the applicant disclosed having been depressed 10 years prior. He had been prescribed Venlafaxine which was very effective for his symptoms. He stated that his depression caused him to have significant concentration and memory difficulties which affected his academic and work performance. He shared that he currently continued to have anger issues related to things that occurred in the past with his parents. He stated that he was often criticized and put down by his parents. He observed that his depressive symptoms returned after moving back into his parent’s home. The diagnosis during this visit was Major Depressive Disorder. The record did not show PTSD diagnosis. e. The applicant developed bilateral hip and knee pain starting the first week in BCT without trauma. His right hip stress fracture and bilateral lower extremity stress reactions were overuse injuries and with proper care (temporary non weightbearing, physical therapy etc.) they would be expected to resolve. However, it was not possible to recover while training up in BCT—his condition prohibited training. At the time of separation, the applicant's hip and lower extremity stress fractures/stress reaction conditions did not constitute disabilities under the provisions of AR 635-40 and therefore did not warrant entry into the Disability Evaluation System. In addition, the record did not show PTSD diagnosis or medical basis for this condition. Further, there was no indication in the applicant’s statements or in the available records, that would lead one to reasonably conclude that the applicant experienced psychosis or MST; or performed an extreme act of heroism, while in the military that might warrant a change in characterization of service from ‘Uncharacterized’. Moreover, the applicant’s MDD developed after service and appeared to have its origin in pre-military family relationship issues and years after military service, was fueled by the same in addition to chronic pain. Based on information available for review, evidence was insufficient to support that the applicant had physical or mental health conditions which failed medical retention standards at the time of discharge in accordance with AR 40-501 chapter 3. It was observed the applicant was discharged under chapter 11; whereas the medical record indicated he was pending chapter 5-17 separation (Other Designated Physical or Mental Conditions). The Board could consider changing the narrative reason for separation and discharge code accordingly. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The evidence shows the applicant enlisted in the USAR on 17 April 2014. He entered ADT on 5 May 2014, and he was discharged 11 June 2014 for entry level performance and conduct, after completing 1 month and 7 days of active service. His character service is uncharacterized. The Board reviewed and was persuaded by the medical advisor’s finding insufficient to support that the applicant had physical or mental health conditions which failed medical retention standards at the time of discharge in accordance with AR 40-501 chapter 3. However, although the evidence was insufficient to support that the applicant had physical or mental health conditions which failed medical retention standards at the time of discharge in accordance with AR 40-501 chapter 3, the Board agreed with the medical official’s observance that the applicant was discharged under chapter 11; whereas the medical record indicated he was pending chapter 5-17 separation (Other Designated Physical or Mental Conditions). The Board determined that changing the narrative reason for separation and discharge code is appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF xx: xx: xx: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 ending on 11 June 2014 as follows: • Block 24 (Character of Service) Uncharacterized • Block 24 (Separation Authority) AR 635-200 • Block 26 (Separation Code) JFV • Block 27 (Reentry Code) 3 • Block 28 (Narrative Reason for Separation) Condition – Not Disability 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing the reason for separation to disability. 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. Army Regulation 635-200 (Personnel Separations-Active Duty Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. Chapter 11 (Entry Level Performance and Conduct) sets policy and provides guidance for the separation of Soldiers because of unsatisfactory performance and/or conduct while in entry-level status. a. Separation of a Soldier in entry level status may be warranted on the grounds of unsatisfactory performance and/or unsatisfactory conduct as evidenced by— • Inability. • Lack of reasonable effort. • Failure to adapt to the military environment. • Minor disciplinary infractions. b. This policy applies to Soldiers who— (1) Enlisted in the RA, ARNG, or USAR. (2) Are in entry-level status, undergoing IET, and, before the date of the initiation of separation action, have completed no more than 180 days of creditable continuous AD or IADT or no more than 90 days of Phase II under a split or alternate training option. (3) Have demonstrated that they are not qualified for retention. The following conditions are illustrations of conduct and/or performance that disqualify Soldiers for retention: • cannot or will not adapt socially or emotionally to military life • cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline • have demonstrated character and behavior characteristics not compatible with satisfactory continued service (4) Have failed to respond to counseling (DA Form 4856–R). c. Entry-level status: (1) For RA Soldiers, entry-level status is the first 180 days of continuous AD or the first 180 days of continuous AD following a break of more than 92 days of active military service. (2) For ARNGUS and USAR Soldiers, entry-level status begins upon enlistment in the ARNG or USAR. For Soldiers ordered to IADT for one continuous period, it terminates 180 days after beginning training. For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II advanced individual training (AIT). (Soldiers completing Phase I BT or basic combat training remain in entry-level status until 90 days after beginning Phase II.) 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. Army Regulation 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. Army Regulation 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 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 10. 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. //NOTHING FOLLOWS//