IN THE CASE OF: BOARD DATE: 18 August 2023 DOCKET NUMBER: AR20230000831 APPLICANT REQUESTS: in effect, an honorable physical disability discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 his is looking to have his discharge changed to reflect his injuries while on active duty. His tibia was fractured during basic training and the physical training and rehabilitation program (PTRP) unit his was in was not helping him heal. He was asking for a medical discharge but was instead put back on the battery to continue basic even though he was hurt at the time. 3. The applicant underwent a medical examination on 24 November 2004 for enlistment purposes. 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 24 November 2004 for a period of 8 years in the delayed entry program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 3 years and 21 weeks on 30 December 2004. 5. On 3 May 2005, action was initiated to separate the applicant under the provisions of Army Regulation (AR) 635-200, Chapter 11 for entry level status performance and conduct. 6. A DA Form 3822-R (Report of Mental Status Evaluation), dated 2 May 2005, shows the applicant was evaluated for administrative separation. His behavior was normal, he was fully alert and oriented. His mood was mildly anxious and moderately depressed. His thinking process was clear with normal thought content. His judgement, impulse control and concentration was poor and memory fair. a. The examiner opined the applicant had the mental capacity to understand and participate in the proceedings. He was found not to be motivated to continue in military service and needed administrative separation from military service. b. Diagnostic findings indicate the following: (1) Axis I: rule out adjustment disorder with depressed mood. (2) Axis II: deferred. (3) Axis III: stress fractures in legs. (4) He was considered to have moderate potential for self-harm. 7. A DA Form 4856 (Developmental Counseling Form), dated 3 May 2005, shows [the applicant was] recommended to be separated from the military under Chapter 11 (Failure to adjust). [He had] been evaluated as having an injury that did not allow him to complete basic training. [He had] completed PTRP and recycled to Alpha battery. [He had] refused to train and even made suicidal gestures. It was [the counselor s] belief, that of medical personnel and that of the chain of command, that it was in the best interest of the US Army and in [his] best interest to discharge [him] from active military service. [He] must understand the effects this discharge could have on [him] for the rest of [his] life. The details of each chapter are as follows: a. [He had] been counseled for Chapter 11. [He has] been recommended to be removed from training and processed for Chapter 11. This could have a serious effect on [his] life. Some of the ramifications are explained below. b. If separation is initiated wider Chapter 5-17, [he] would receive an uncharacterized separation. If separation is initiated under Chapters 5 or 13, [he] may receive a general discharge. If [he] was discharged under Chapter 14, [he] may receive an other than honorable discharge. c. An early separation, even with a characterization of service as honorable, may reduce [his] chances to obtain either civilian or government employment. It may preclude [him] from reenlisting in any of the Armed Forces. If [he was] separated for misconduct before [his] normal ETS date, [he] would not receive any money back from the Army College Fund program and may be required to repay any enlistment or reenlistment bonus [he had] received. [His] type of discharge would become a matter of permanent record and may, consistent with the Privacy Act, be provided to any federal agency if [he] either applied for federal employment or for a federal security clearance. A general discharge would cause [him] to lose civil service retirement credit. d. In addition to the above, an other than honorable discharge would cause [him] to lose payment for accrued leave, to not be authorized to wear a military uniform, to be denied admission to a Soldier's home, and to lose eligibility for burial in either Army national or Army post cemeteries. An other than honorable discharge may cause [him] to lose all benefits administered by the Veterans Administration and other federal agencies. 8. The applicant was notified of the proposed action by his commander. The specific reason for the proposed action is due to the results of his TMC evaluation stating that his was poorly motivated to train and had thoughts of dying which proved he was unable to adapt to the military environment. He was advised of his rights to * consult with consulting counsel within a reasonable time (not less than three duty days) or may also consult with civilian counsel at his own expense. * to submit statements on his own behalf * to obtain copies of documents that will be sent to the separation authority supporting this proposed separation * to request a separation physical if he feels that his physical status has changed since his last examination. However, an examination is not required for this separation. * to waive the above rights in writing. Failure to respond within seven duty days shall constitute a waiver of the above rights. If he elects to waive his rights, he must do so in writing witnessed by his consulting counsel. 9. The applicant acknowledged receipt of his notification on 3 May 2005 and elected to waive representation. He also elected not to submit statements or request a separation physical. He did request a copy of his separation documents. 10. The applicant s separation was approved on 4 May 2005. He was subsequently discharged on 9 May 2005 under the provisions of AR 635-200, chapter 11 for entry level performance and conduct. His character of service is uncharacterized. 11. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant s ABCMR application and accompanying documentation, the military electronic medical record (EMR) (AHLTA and/or MHS Genesis), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting an upgrade of his 9 May 2005 uncharacterized discharge and, in essence, a referral to the Disability Evaluation System (DES). He states: I am looking to have my discharge changed to reflect my injuries while on active duty. My tibia was fractured during basic training and the PTRP [physical training and rehabilitation program] unit I was in was not helping me heal. I was asking for a medical discharge but was instead but back on the on the battery to continue basic even though I was hurt at the time. c. The Record of Proceedings details the applicant s military service and the circumstances of the case. The applicant s DD 214 shows he entered the regular Army for basic combat training on 30 December 2004 and was discharged on 9 May 2005 under provisions provided in chapter 11 of AR 635-200, Personnel Separations Enlisted Personnel (15 July 2004), for falling below entry level performance and conduct standards. d. No medical documentation was submitted with the application. e. Review of records in AHLTA he was diagnosed with a mild left tibial stress fracture in early March 2005 and had complete resolution with treatment. From his 14 April 2005 follow-up physical therapy encounter: Pain scale: 0 Pain Free Soldier states 100% better and ready to go back to training. Soldier has no pain in tibia with strong palpation. Soldier able to perform 20 side straddle hops/20 modified high jumpers/20 one legged hops all without pain f. The applicant s company commander counseled him on 3 May 2005 on his recommendation he be separated from the Army under provisions in chapter 11 of AR 635-200: PVT [Applicant], you have been recommended to be separated from the military under Chapter 11 (Failure to adjust). You have been evaluated as having an injury that did not allow you to complete Basic training. You have completed PTRP and recycled to Alpha battery. You have refused to train and even made suicidal gestures. It is my belief, that of medical personnel and that of the chain of command that it is in the best interest of the US Army and in your best interest to discharge you from active military service. g. The Warrior Training and Rehabilitation Program, or WTRP, previously known as physical training and rehabilitation program (PTRP), provides a modified basic combat training (BCT) and/or one station unit training (OSUT) environment designed to return Soldiers to regular initial military training programs with higher levels of motivation, fitness, training, and education than when they entered, while providing them the quality health care they need to rehabilitate their injuries. Given his continued symptoms and abnormally low bone density, he would not have been a good candidate for this program. h. In May 2005, his company commander informed him of the initiation of separation action under chapter 11 of AR 635-200: The specific reason for my proposed action is due to the results of your TMC [troop medical clinic] evaluation stating that you are poorly motivated to train and have thoughts of dying which proves you are unable to adapt to the military environment. i. The applicant had undergone his pre-separation mental status evaluation on 2 May 2005. The provider documented a normal examination and diagnosed the applicant with R/O adjustment disorder with depressed mood. He opined the applicant had the mental capacity to understand the proceedings, needed to be administratively separated from the Army, and was not motivated to continue in the Army. j. On note, there are no behavioral health encounters in the EMR. k. There is no probative evidence the applicant had a service incurred medical condition which would have failed the medical retention standards of chapter 3, AR 40- 501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. l. Review of his records in JLV shows he is not registered with the Veterans Hospital Administration. m. An uncharacterized discharge is given to individuals who separate prior to completing 180 days of military service, or when the discharge action was initiated prior to 180 days of service. This type of discharge does not attempt to characterize service as good or bad. n. It is the opinion of the Agency Medical Advisor that neither a discharge upgrade nor a referral of his case to the Disability Evaluation System is warranted. 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 Board carefully considered the applicant s contentions, the military record, and regulatory guidance. The Board found insufficient evidence that the applicant had a service incurred medical condition which would have failed medical retention standards in accordance with applicable regulatory guidance and the applicant provided none on his own on behalf for consideration by the Board. Based on a preponderance of evidence available for review, the Board determined that the character of service the applicant received upon separation was not in error or unjust and a referral to the Disability Evaluation System for consideration of his request 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 Board determined 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) 635-200 (Personnel Separations-Active Duty Enlisted Administrative Separations), published 6 June 2005, 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 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. Service will be described as uncharacterized under the provisions of this chapter. 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) AR20230000831 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1