IN THE CASE OF: BOARD DATE: 28 September 2023 DOCKET NUMBER: AR20230001984 APPLICANT REQUESTS: in effect, a medical discharge separation code vice “JFV” for physical condition, not a disability or a medical retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) * Department of Veterans Affairs (DVA) letter, 9 December 2021 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 14 October 2004 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 due to his disability rating of 100% at discharge, he will be filing for combat related special compensation. He will need a medical discharge code on his DD Form 214. 3. The applicant enlisted in the Regular Army on 22 February 2001. He held military occupational specialty 11B (Infantryman). 4. He served in Kuwait/Iraq from 26 April 2003 – 10 November 2003. 5. The applicant’s record is void of the complete facts and circumstances that led to his separation. However, his service record contains a DD Form 214 that shows he was discharged in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-17, for physical condition, not a disability. His DD Form 214 shows he completed 3 years, 7 months, and 23 days net active service this period. His DD Form 214 also shows his characterization of service of under honorable conditions. Item 26 (Separation Code): JFV. 6. There is no available evidence indicating he was issued a permanent profile or was diagnosed with a condition that did not meet medical fitness standards in accordance with AR 40-501 (Standards of Medical Fitness) during his period of service. 7. The applicant provides a DVA letter, 9 December 2021, showing his summary of benefits for combined service-connected disabilities rated at 100% effective 1 December 2020. 8. 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. 9. 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. 10. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the DVA, 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 DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 11. MEDICAL REVIEW: a. Background: The applicant is requesting, in effect, a medical discharge separation code vice “JFV” for physical condition, not a disability or a medical retirement. The applicant contends PTSD is a factor in his request. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a brief summary of information pertinent to this advisory: * The applicant enlisted in the Regular Army 22 February 2001. * He served in Kuwait/Iraq from 26 April 2003 – 10 November 2003. The applicant has been awarded the Combat Infantry Badge, as well as other medals and ribbons. * The applicant’s record is void of the complete facts and circumstances that led to his separation. * He was discharged on 14 October 2004, under AR 635-200, paragraph 5-17, for physical condition, not a disability with a general, under honorable discharge. c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 293, ABCMR Record of Proceedings (ROP), DD Form 214, Department of VA letter, as well as documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant asserts that PTSD is a factor in his request, that “due to my disability, 100% at discharge I will be filing for CRSC. I will need medical discharge code on my DD 214.” Hence, the applicant is asserting that he should have received a medical board discharge/medical retirement, and once this is established, he plans to submit for CRSC. The applicant’s DD Form 214 shows that he received a chapter 5-17, with a general, under honorable discharge. However, there are no records in his service and separation file to indicate what medical condition led to the 5-17, nor what misconduct led to a general discharge. The applicant’s time in service predates consistent use of electronic health records (EHR) by the Army. No mental health records were present in his file. The only record form his time in service shows a consult placed near the time of his discharge to address shoulder and back pain caused from rucking. His service record and supporting documents did not contain his service treatment records (STR). The applicant did not provide any other records to substantiate his claim/assertion that he should have received a medical discharge. There is no evidence to suggest the applicant ever received mental health care, that he was ever issued a permanent profile or was diagnosed with a condition that did not meet medical fitness standards in accordance with AR 40-501 during his period of service. e. Per the applicant’s VA EHR, he has been engaged with mental health care since 2012. He has been diagnosed with PTSD, ADHD combined type, depressive disorder, anxiety disorder unspecified, personal history of traumatic brain injury and concussion, problems related to housing and economic circumstances, and problems related to unspecified psychosocial stressors. He has been engaged in medication management, case management, therapy, and inpatient psychiatric care (one known hospitalization). His EHR states he is 100% service connected. He also provided a VA letter, dated 9 December 2021, showing his summary of benefits for combined service-connected disabilities rated at 100%, to include 100% for PTSD. The effective date is 1 December 2020. Hence, the applicant received 100% service connection for PTSD approximately 16 years after his discharge. There is an administrative note in his EHR from 23 August 2012 that notes him having a 50% service connection (to include for PTSD) with an effective/origin date of 3 October 2009. Hence, again, the applicant was diagnosed, and service connected 5 years after discharge. His compensation and pension exam (C&P), dated 6 May 2014, noted that he was diagnosed with PTSD and depression, unspecified, but indicated no to having a TBI. His C&P did not specify the events leading to his PTSD diagnoses. Another C&P 30 October 2015 provided similar information. f. Per his EHR, he had a TBI screen on 23 August 2012 where he noted experiencing IED blast or explosion, RPG, land mine, grenade, etc; vehicular accident/crash; fall; blow to head. He reported having a LOC at time of, being dazed, not remembering the event, having a concussion and a head injury. He also reported ongoing concerns after to include memory problems, irritability, headaches and sleep problems. He was seen for a neuropsychological exam 18 October 2012 where it was found that processing speed and working memory were reduced but that his concerns were not consistent with a mild traumatic brain injury 10 years prior. His reported cognitive concerns were hypothesized to be due to decreased motivation, fatigue and stress. Through review of JLV, this applicant did have “Community Health Summaries and Documents” available, though there was no record of a mental health diagnoses, nor mental health encounters. No other medical records were provided. g. It is the opinion of this BH Advisor that there is insufficient evidence to support a referral to IDES process for a mental health condition at this time. The burden of proof is on the applicant to provide contemporaneous evidence that he should have been medically retired or discharged during his time in service. There is insufficient evidence to support the applicant was ever seen or treated for any mental health concern, that he was diagnosed with a med boardable condition, nor that he was ever found unfit for duty, failed medical retention standards, or was placed on a permanent profile. The applicant has since been service connected (100%) for PTSD. However, VA examinations are based on different standards and parameters; they do not address whether a medical condition met or failed Army retention criteria or if it was a ratable condition during the period of service. Therefore, a post-discharge diagnosis of PTSD and a VA disability rating does not imply failure to meet Army retention standards at the time of service, nor is it indicative of an injustice at the time of service. Furthermore, even an in-service diagnosis of PTSD is not automatically unfitting per AR 40-501 and would not automatically result in medical separation processing Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? NA (2) Did the condition exist, or experience occur during military service? NA (3) Does the condition or experience actually excuse or mitigate the discharge? NA 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 available evidence does not indicate the applicant had any conditions that would have warranted his referral to the Disability Evaluation System to determine if he should be discharged or retired due to disability. Based on a preponderance of the evidence, the Board determined the applicant’s administrative discharge was not in error or unjust. 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. 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. 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 a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (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 Physical Evaluation Board (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. Army Regulation 635-40 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. 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. c. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). The fact that a Soldier has 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. 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 Soldier is found unfit because of another condition that is disqualifying. 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. 5. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-17 states a service member may be separated for other designated physical or mental conditions that potentially interfere with assignment to or performance of duty. Conditions not amounting to disability under Army Regulation 635- 40 and excluding conditions appropriate for separation processing under paragraphs 5- 11 (Separation of personnel who did not meet procurement medical fitness standards) or 5-13 (Separation because of personality disorder) such conditions may include, but are not limited to, the following: * chronic airsickness * chronic seasickness * enuresis * sleepwalking * dyslexia * severe nightmares * claustrophobia * other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired b. When a commander determines a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or a mental status evaluation in accordance with Army Regulation 40-501. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. c. Separation processing may not be initiated under this paragraph until the Soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. A Soldier being separated under this section will be awarded a character of service of honorable, under honorable conditions, or an entry-level separation. 7. 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. 8. 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. 9. Title 10, U.S. Code, section 1556 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001984 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1