IN THE CASE OF: BOARD DATE: 27 September 2023 DOCKET NUMBER: AR20230002065 APPLICANT REQUESTS: in effect, * addition of the Army Good Conduct Medal (AGCM) to his DD Form 214 (Report of Separation from Active Duty), for the period ending 29 June 1979 * addition of an Army Achievement Medal (AAM) to his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 3 February 1983 * physical disability separation or retirement APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Good Conduct Medal orders (Permanent Orders (P.O.) 139-16 and P.O. 40-11 * Army Achievement Medal Orders P.O. 34-4 * Office of the Surgeon General letter, 26 August 1993 * Request for Military Documents, 9 June 1994 * Separation date orders 133-18, 29 June 1979 * Request for Curtailment recommendation * Chronological Record of Medical Care (3 pages) * DD Form 214, 29 June 1979 * DD Form 214, 3 February 1983 * Notification of Personnel Action 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 previously submitted an application for medical treatment received on an extension of active duty. A medical discharge was provided but not accepted. He did not understand the medical treatment and diagnosis. Subsequent treatment received from U.S. Army, U.S. Air Force and Veterans Affairs (VA) has provided understanding of his recurring treatment. Since his honorable discharge in 1979 he attempted to transition into civilian life, subsequently re-enlisted and served an additional active-duty enlistment. He married an active-duty service member and experienced a recurrence of mental health difficulties requiring follow-up treatment. He received many years of treatment while serving as dependent family member. His treatment resulted in several voluntary separations of federal employment and finally early retirement. After retirement as a Department of Defense (DoD) Civilian he personally began to understand the recurring difficulty of his medical diagnosis and now has great concern for the wellbeing of his family. His difficulties required two separations as a DoD Civilian and finally voluntary early retirement. 3. The applicant provided the following evidence showing awards were omitted from his DD Forms 214. These awards will be administratively added to his DD Forms 214. These awards will not be discussed further in these Record of Proceedings. The Board will consider his request for physical disability separation or retirement. a. P.O. 139-16, issued by United States Army Regional Personnel Center, Hanau, on 30 October 1980, shows he was awarded the Army Good Conduct Medal for service from 24 April 1976 thru 23 April 1979. b. P.O. 40-11, issued by United States Army Regional Personnel Center, Hanau, on 29 March 1982, shows he was awarded the Army Good Conduct Medal (second award) for service from 23 April 1979 thru 22 April 1982. c. P.O. 34-4, issued by 574th Personnel Service Company, APO, NY, on 25 March 1983, shows he was awarded the Army Achievement Medal for service from 12 September 1980 thru 9 February 1983, for meritorious service. 4. The applicant’s service records are not available for review. An exhaustive search was conducted to locate the service records, but they could not be found. The only documents available were the documents provided by the applicant. These documents are sufficient for the Board to conduct a fair and impartial review of this case. 5. The applicant provided his DD Form 214 showing he enlisted in the Regular Army on 23 April 1976. He was honorably released from active duty on 29 June 1979 due to completion of service. His DD Form 214 shows he completed 3 years, 2 months, and 7 days net active service this period. 6. The applicant provided his DD Form 214 showing he reenlisted in the Regular Army on 15 February 1980. He was honorably discharged on 3 February 1983 for expiration term of service. His DD Form 214 shows he completed 2 years, 11 months, and 19 days net active service this period. 7. The applicant provides: a. An Office of the Surgeon General letter by Psychiatry Consultant to the Surgeon General, 26 August 1993, stating the letter was written to document the applicant’s present status regarding his application for correction of military records. A review of his records shows that he did suffer from a medical condition for which a medical board should have been done prior to his discharge from active duty. The formal review can take up to several years. Presently he is waiting for the VA to rule on his service- connected disability. From his knowledge of the case, it is reasonable to expect that a service-connected disability rating of 10% or more will be adjudicated. The applicant is applying for employment and is seeking to be awarded the 10-point veteran's preference. It is his recommendation that his request be favorably considered. b. Request for Military Documents, 9 June 1994, requesting his records pertaining to facts and circumstances surrounding discharge, Army medical records while on active duty, VA medical/clinical records located in claim folder, and VA rating decisions. c. Request for Curtailment recommendation showing the Commanding General strongly recommended approval of curtailment of overseas duty for the applicant’s spouse Sergeant (SGT) . 1. The case on the SGT ’s son has been reviewed by the pediatric consultant. It is the consultant's opinion that the medical cure the patient needs is not available in USAREUR (United States Army Europe). Her son is suffering from undifferentiated attention deficit disorder, developmental expressive language disorder and primary enuresis. It should also be noted that SGT ’s spouse has various psychiatric problems. 2. Recommend approval of requested curtailment and expeditious movement of sponsor and family to continental US where medical care for treatment of the above conditions is available. d. Chronological Record of Medical Care (3 pages) showing 20 May 1994, in closing summary the applicant had a long history of depression and PSTD. His first psychiatric treatment episode occurred in 1979. At that time, he was hospitalized at Moncrief Army Hospital in Fort Jackson, SC. He was diagnosed then as having an acute schizophrenia episode and offered a medical board which he declined. e. Notification of Personnel Action showing the nature of action as retirement – special option. 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 a physical disability separation or retirement. The applicant is asserting that other mental health is related to his request for disability. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Per the ROP, the applicant’s service records are not available for review. An exhaustive search was conducted to locate the service records, but they could not be found. The only documents available were the documents provided by the applicant. These documents are sufficient for the Board to conduct a fair and impartial review of this case. * Applicant enlisted in the Regular Army on 23 April 1976. * He was honorably released from active duty on 29 June 1979 due to completion of service. * He reenlisted in the Regular Army on 15 February 1980. He was honorably discharged on 3 February 1983 for expiration term of service. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), orders for his medals, letter from the Office of the Surgeon General letter, request for military documents, request for curtailment recommendation, Chronological Record of Medical Care, separation date orders, DD Form 214 (2), and documents from his service record and separation process. 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 is petitioning for a physical disability separation or retirement, stating that he has experienced a recurrence of mental health difficulties requiring follow up treatment. He stated that a “medical discharge (was) provided but not accepted” (he declined it) and that he has a better understating of his recurring treatment. He noted receiving many years of treatment while serving as a dependent family member and that his treatment resulted in several voluntary separations of federal employment and finally early retirement. e. The applicant’s time in service predates use of electronic health records (EHR) by the Army, hence no EHRs are available for review. His service record and supporting documents did not contain his service treatment records (STR). However, the applicant did submit a memo from 26 August 1993, form the psychiatry consultant to the Surgeon General that stated the applicant had suffered from a medical condition for which a medical board should have been done prior to his discharge from active duty. His records also contain his request for his service medical records; however, none were in his supporting documents. Though, health records from when he was a dependent were in the file (Health Record: Chronological Record of Medical Care). On 20 May 1994, it is noted that he has a long history of depression and PTSD and that he’d been followed for 3 years at WRAMC. This medical record indicates that his first psychiatric treatment episode occurred in 1979, at which time he was hospitalized at Moncrief Army Hospital in Fort Jackson, SC and diagnosed with an acute schizophrenic episode. He was reportedly offered a medical board, which he declined. He was reportedly treated for a few sessions but then “essentially went untreated until 1989.” The doctor hypothesized that a more accurate diagnosis back then may have been brief reactive psychosis. The doctor also summarized that he engaged in medication management and psychotherapy. He noted the present working diagnosis has been PTSD and dysthymia, and that he was showing great improvement, though there remained some relationship concerns that had been recommended for additional couples related therapy. f. Per the applicant’s EHR, he began engaging with the VA in 1994. The applicant is 30% service connected for bipolar disorder (BPAD). Psychiatry records begin in 1999, with him consistently seen for medication management until 2021. Records also indicate he has engaged in individual therapy as well. His early records corroborate what has already been documented; that he was hospitalized for a psychotic episode in 1979 while in the Army. Since then, he has had periods of severe depression and periods of elevated moods. He has been treated for BPAD since at least 1999. The applicant has been diagnosed with BPAD, anxiety disorder – unspecified, generalized anxiety disorder (GAD), unspecified drug dependence, unspecified mood disorder, depressive disorder – not elsewhere classified, major depressive affective disorder, unspecified psychosis, neurotic depression, and numerous variations of the above diagnoses that can likely now be best explained by his BPAD I diagnosis. Through review of JLV, this applicant did have “Community Health Summaries and Documents” available. The applicant’s record also reflects that he has been diagnosed with BPAD. g. It is the opinion of this Agency Behavioral Health 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. Per the medical records provided from 1994, the applicant reportedly was offered a medical board in 1979, however he declined it. He was honorably discharged the same year and opted to return to active duty only 7 months later. Again, he served honorably for and was discharged at the end of his term. There is no indication that his medical or mental health impacted his functioning at work. There is no indication of a psychiatric profile or ongoing care, with his medical records from later stating that he went from 1979 until 1989 before engaging in treatment again. Hence, there is insufficient evidence that he was not fit for duty from a mental health standpoint, that he was on a psychiatric profile, that he did not meet medical retention standards, nor that he was at the medical readiness decision point and needed a referral to the IDES process. The applicant has since been service connected (30%) for BPAD. 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 BPAD 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. Of note, BPAD is a diagnosis that would often render a soldier unfit. However, there is no evidence he was diagnosed with this condition during service, nor that the conditions he did have (or may have had) rendered him unfit for duty. 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. 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 record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding insufficient evidence to support a referral to IDES process for a mental health condition at this time. The Board noted, the opine found no evidence he was diagnosed with this condition during service, nor that the conditions he did have (or may have had) rendered him unfit for duty. The Board agreed there is insufficient evidence that the applicant was not fit for duty from a mental health standpoint, that he was on a psychiatric profile, that he did not meet medical retention standards, nor that he was at the medical readiness decision point and needed a referral to the IDES process. The Board recognized the applicant’s request for referral to the DES for a behavioral health condition, however it is without merit and relief was denied. 2. The Board determined DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. 3. The Board agreed the VA applies its own polices and regulations to make service connection and rating determinations. It is not bound by determinations made by the Army. With that, unlike the VA, the Army’s determination of fitness and its mandatory application of VA ratings is a snapshot in time whereas the VA can make service connection and rating determinations throughout the veteran’s life. The VA provides post-service support and benefits for service-connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service-connected disabilities. 4.. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. ? 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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. ADMINISTRATIVE NOTE(S): A review of the applicant's records shows his DD Form 214 omitted an award in item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) block. As a result, amend the DD Form 214, ending 29 June 1979 by adding in * item 26: Army Good Conduct Medal (1st award) for exemplary service from 24 April 1976 thru 23 April 1979 and adding the medal to his DD Form 214 Also, his DD Form 214 ending 3 February 1983, omitted awards in * item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) block. As a result, amend the DD Form 214 by adding: Army Achievement Medal and Army Good Conduct Medal (2nd award) for the period 23 April 1979 thru 22 April 1982. 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. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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 under other than honorable conditions, 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. 8. 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; sexual harassment. Boards were directed 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. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 9. 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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 based on 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. 10. 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) AR20230002065 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1