IN THE CASE OF: BOARD DATE: 24 August 2023 DOCKET NUMBER: AR20230001138 APPLICANT REQUESTS: physical disability retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * 7 pages of military medical records * Department of Veterans Affairs (VA) Rating Decision 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 discharged under the expeditious discharge program for failure to maintain acceptable standards of conduct; however, it was established at the time that he suffered from mental health issues during his time in service, as shown in the medical records he is providing. He is seeking the correction of his records to accurately show that his mental health issues were responsible for his release from active duty. He believes he should have received a medical discharge with the corresponding medical retirement pay. 3. The applicant enlisted in the Regular Army on 5 June 1980. His DA Form 2-1 (Personnel Qualification Record Part II) shows he attended initial entry training from 6 June to 4 September 1980. 4. The applicant provided medical records showing that while attending initial entry training, he was taken by ambulance to the emergency room on 21 July 1980 due to an overdose of medication/suicide attempt. 5. The applicant's records shows he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on: * 22 July 1980 for leaving his place of duty without authority * 24 November 1980 for wrongfully having in his possession some amount of marijuana * 28 October 1981 for being disrespectful in language towards his superior noncommissioned officer (NCO) * 24 May 1982 for failing to go at the time prescribed to his appointed place of duty 6. The applicant's records also contain several counseling forms with dates ranging from 9 March 1981 to 24 March 1982 showing he was counseled on various occasions for acts of misconduct that include disrespect towards his superior NCO and commissioned officer, missing formation on various occasions, failure to be at his appointed place of duty, and failure to follow instructions. 7. On 18 March 1982, the applicant was issued a Bar to Reenlistment Certificate based on his acts of indiscipline. 8. On 12 May 1982, the applicant was informed by his immediate commander that he was initiating action to release him from active duty and transfer him to the Individual Ready Reserve (IRR) under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 5-31, Expeditious Discharge Program (EDP)), with an honorable discharge. The commander stated the reason for the proposed action was the applicant's inability to follow instructions. 9. On 17 May 1982, the applicant acknowledged notification of the proposed separation action. He elected not to submit a statement in his own behalf. 10. On 18 May 1982, the applicant's commander formally recommended the applicant s separation from active duty under the provisions of Army Regulation 635-200, paragraph 5-31. The commander stated: a. The applicant has continuously shown an unwillingness to obey instructions from NCOs and officers in a timely and professional manner. Additionally, he has repeatedly demonstrated a poor attitude towards accomplishing the assigned mission and has been absent from his place of duty on many occasions. Despite counseling statements, Article 15s, and numerous verbal reprimands, he has shown no improvement. b. The applicant has no potential for promotion and his job performance has continued to decline in spite of extensive rehabilitation efforts. 11. On 8 June 1982, the separation authority approved the separation action and directed the applicant's transfer to the IRR and an honorable characterization of service. 12. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty and transferred to the U.S. Army Reserve on 21 June 1982. He completed 2 years and 17 days of active service. 13. The applicant provided medical records showing he was diagnosed with adjustment disorder with mixed emotional features in January 1982. He also provided a VA rating decision showing he was granted service-connected disability compensation for major depressive disorder. 14. 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. 15. Title 38, United States 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. 16. Title 38, Code of Federal Regulations, Part IV is the VA 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. 17. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting a physical disability retirement as the result of mental health conditions including PTSD. 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 5 June 1980; 2) The applicant's records shows he received nonjudicial punishment multiple times between July 1980-March 1982. Some of the specific events: were leaving his place of duty without authority, wrongfully having in his possession some marijuana, using disrespectful language towards his superiors, missing formation on various occasions, failure to be at his appointed place of duty, and failure to follow instructions; 3) On 18 March 1982, the applicant was issued a Bar to Reenlistment Certificate; 4) He was honorably released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 5-31 Expeditious Discharge Program (EDP) and transferred to the U.S. Army Reserve on 21 June 1982. c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed the supporting documents and the applicant s military service and medical records. The VA s Joint Legacy Viewer (JLV) and the applicant s VA Benefits letter were also examined. d. The applicant stated that he was mistreated with the stigma on his discharge, and he was experiencing mental health conditions, which were responsible for his release from the Regular Army. The applicant provided documentation that he had attempted suicide from an overdose of six pills of aspirin/Acetaminophen on 21 July 1980. A medical note from the Emergency Department stated the applicant took the medication to keep from hurting someone else. He was mad at two fellow Soldiers. He was released to his unit the same day and diagnosed with an adjustment disorder with mixed emotional features and a rule out for mixed personality disorder. There is insufficient evidence he was admitted to inpatient psychiatric care or attended any additional behavioral health treatment while on active service. A review of JLV provided evidence the applicant has been diagnosed with service-connected major depression since 2012. There is insufficient evidence the applicant has ever been diagnosed with PTSD. e. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant had one behavioral health encounter while on active service, and there was insufficient evidence to suggest the applicant did not meet the medical retention standards as the result of a psychiatric condition. He was involved in numerous events of misconduct, which resulted in his discharge, but the presence of misconduct is not sufficient to establish a history of a psychiatric condition. Therefore, there is insufficient evidence at this time that the applicant warrants a referral to IDES from a behavioral health perspective. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he was experiencing mental health conditions including PTSD, which warrants a physical disability retirement. The applicant had one behavioral health encounter where he was diagnosed with an adjustment disorder while on active service. He later was diagnosed with service-connected major depression. There is insufficient evidence he was ever diagnosed with PTSD. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends he was experiencing mental health conditions including PTSD, which warrants a physical disability retirement. The applicant had one behavioral health encounter where he was diagnosed with an adjustment disorder while on active service. He later was diagnosed with service-connected major depression. There is insufficient evidence he was ever diagnosed with PTSD. (3) Does the condition experience actually excuse or mitigate the discharge? No, applicant had one behavioral health encounter while on active service, and there was insufficient evidence to suggest the applicant did not meet the medical retention standards as the result of a psychiatric condition. He was involved in numerous events of misconduct, which resulted in his discharge, but the presence of misconduct is not sufficient to establish a history of a psychiatric condition. Therefore, there is insufficient evidence at this time that the applicant warrants a referral to IDES from a behavioral health perspective. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of requests for changes to discharges. 2. The Board concurred with the conclusion of the ARBA BH Advisor that the evidence does not indicate the applicant had any behavioral health conditions that did not meet retention standards prior to his discharge. Based on a preponderance of the evidence, the Board determined the reason for the applicant s discharge was not in error or unjust. 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. 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 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-31 of the regulation in effect at the time provided for the discharge of enlisted personnel who had completed at least 6 months but less than 36 months of active duty and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. No individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge. 3. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 4. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the DES 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 or her office, grade, rank, or rating. It provides that a medical evaluation board is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. 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. A 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 presents 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. When a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the DES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. 5. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by 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 ABCMR applicants (and/or their counsel) prior to adjudication. 6. 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. 7. 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) AR20230001138 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1