IN THE CASE OF: BOARD DATE: 18 October 2023 DOCKET NUMBER: AR20230003023 APPLICANT REQUESTS: in effect, a medical separation. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Authorization to Disclose Information to the Department of Veterans Affairs (DVA) * Self-authored letter 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 a specialist when he graduated 21B (Combat Engineer) school in North Dakota, Devils, Lake right after he was crossed leveled to Fort Sam Houston where he bumped heads with a sergeant. He never admitted that he did not like the applicant and requested his reserve unit discharge him. He was trained to kill, serve, and protect. He was promoted to specialist and had two military occupational specialties (MOS) 21B and 42L (Administrative Specialist). He was assigned to medical unit Fort Sam Houston. He injured his back loading tents and poles. His sergeant requested he return to his reserve unit to cover up his injury. Now he feels like a failure, and he lost hearing. He swore to protect and when denied he started to think suicidal and depression. He cannot get the military out of his mind. In his self-authored letter, he states: a. He needs mental help. He suffered from post-traumatic stress disorder (PTSD) and Schizophrenia manic. People cannot hang or live with him because he is told he treats people as if he is still in the military. He would have died to protect his brothers and sisters of the armed forces. When he watches military movies or Veterans day, he has suicidal thoughts. He would like to be treated fairly and his medical conditions be proof he needs help. b. He tells his story of when he was reclassifying to 21B stating he was called to active duty to a medical unit at Fort Sam Houston, TX. He wants help and treatment for PTSD, Bipolar, Depression, and sciatic nerve injury from loading tents and poles. (The entire letter is available for review in documents). 3. The applicant enlisted in the U.S. Army Reserve (USAR) on 16 June 1999. 4. He entered a period of active duty on 7 June 2000. He held MOS 71L. He was released from active duty on 30 September 2000, after completion of required active service. 5. The applicant’s available records shows a court document where he plead guilty to the charge of theft of $20-$500 which occurred on 14 September 2001, in Brazos County, TX. It was ordered, adjudged, and decreed by the Court on 6 December 2001, the defendant is guilty. He was sentenced to 120 days in the Brazos County Jail. 6. On 27 February 2006, a memorandum for exception to policy to execute streamlined discharge of Unsatisfactory Participants in the Army Reserve and the Army National Guard, was granted to condense this process into one notification memorandum send by certified mail, with a 30-day response window. The exception to use one memorandum to notify and separate an unsatisfactory participant will expire one year from the date of this memorandum. 7. On 24 July 2006, the applicant was notified of initiation action to separate him from the Army Reserve for unsatisfactory participation under the provisions (UP) of Army Regulation (AR) 135-178 (Enlisted Administrative Separations), chapter 13. 8. A response memorandum was sent via FedEx on 26 July 2006, to the applicant at College Station, TX and returned undelivered on 1 August 2006. The package was (returned) delivered to Fort McPherson, GA via FedEx on 2 August 2006. 9. There is no response in the available records by the applicant. 10. On 17 October 2006, Military Law Attorney, reviewed the elimination action pertaining to the applicant and found it to be legally sufficient pursuant to AR 135-178. The modified Notification Memorandum was sent via FedEx on 26 July 2006. The notification was returned 'undeliverable' on 2 August 2006. AR G-1 has exhausted all available measures to locate the Soldier in accordance with Memorandum, HQDA G-1 DAPE-MP, 27 February 2006, Subject: Exception to Policy to Execute Streamlined Discharge of Unsatisfactory Participants in the Army Reserve and the Army National Guard. 11. Orders 06-321-00024, issued by Headquarters, U.S. Army Reserve Command, Fort McPherson, GA, on 17 November 2006, shows the applicant was discharged under other than honorable conditions on 17 November 2006. 12. The available records does not contain, nor did he provide a permanent profile or documentation showing he was entered into the medical evaluation board process. 13. 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. 14. 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. 15. 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. 16. Based on the applicant’s condition(s)/contentions the Army Review Boards Agency medical staff provided a medical review for the Board members. 17. 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 (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and 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 a discharge upgrade and, in essence, a referral to the Disability Evaluation System (DES) for a back injury he sustained while lading tents and poles at Fort Sam Houston, TX. c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. A DD 214 shows the former USAR Soldier entered active duty for initial entry training on 7 June 2000 and was released from active duty at the completion of his training on 30 September 2000 with the military occupational specialty (MOS) 71L – Administrative specialist. d. Discharge orders published by the United States Reserve Command on 17 November 2006 show he was discharged with an under other than honorable conditions characterization of service on 17 November 2006 under provisions provided in AR 135- 178, Enlisted Administrative Separations (19 July 2005). The orders neither cite an authorizing chapter or paragraph nor provide a narrative reason for separation. e. The applicant opens his self-authored letter stating he is currently incarcerated going on to state: “I am sending what little information I have available but request that y’all consider letting me get all the help and benefits that I can receive. I need mental help and I suffer PTSD, schizophrenia, mania ... So please help me be treated for PTSD, Bipolar, Depression. Also, I hurt my sciatic nerve loading tents in Fort Sam Houston.” f. A Service School Academic Evaluation Report (DA form 1059) shows the applicant attended and graduated phase 2 of Combat Engineer (MOS - 21B) training in August 2004 and the instructor marked YES to the question “Has the student demonstrated the academic potential for the selection to higher level school/training? g. The applicant’s commander informed the applicant on 24 July 2006 that he was initiating separation actions under chapter 13 of AR 135-178 for unsatisfactory participation. Troop program unit Soldiers (aka drilling members) are required to participate in at least 48 scheduled inactive duty training (IDT)s, and not less than 14 days, exclusive of travel time, of annual training. Unsatisfactory participation is defined as the failure to attend annual training or accruing 9 or more unexcused absences in any 1-year period. h. The applicant did not return the response memorandum. i. JLV shows the applicant has no diagnoses on his medical problem list. It contains five mental health case management encounters, four from November-December 2017 and one from August 2020 in which the provider concludes: “Assessment/Plan: Mr. [Applicant] is a Justice Involved Veteran, who served time in the Harris County Jail. Client is experiencing moderate difficulty with community reentry. Veteran is listed as Humanitarian in CPRS [computerized patient record system] and has access to limited services under VHA [Veterans Hospital Administration]. Mr. [Applicant] may qualify for SSVF [Supportive Services for Veteran Families] and/or GPD [VA Grant and Per Diem]. VJO [Veteran Justice Outreach Program] emailed housing resources to Mrs. to share with Mr. [Applicant]. VJO will remain available as needed.” j. It is opinion of the ARBA Medical Advisor that his discharge for unsatisfactory participation was appropriate and that a referral of his case to the Disability Evaluation System is not warranted. k. However, there is no evidence of military misconduct or UCMJ violations in the record. It is therefore recommended the board consider upgrading an otherwise harsh appearing characterization of service. Kurta Questions: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The applicant self asserts that he suffered from PTSD and other mental health conditions. (2) Did the condition exist or experience occur during military service? Unknown. The applicant self asserts PTSD and other mental health conditions but does not indicate the date of onset of these self-asserted conditions. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant has submitted no medical documentation indicating a diagnosis of PTSD and/or other mental health conditions. Review of the VA medical records indicates that the applicant has not been diagnosed with either a service connected or nonservice connected BH condition. However, as per Liberal Consideration guidance, the applicant’s self-assertion alone merits consideration by the board. ? 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 the applicant’s discharge for unsatisfactory participation was appropriate and that a referral of his case to the Disability Evaluation System is not warranted. The Board agreed except for his self-authored statement there is no evidence supporting the applicant was experiencing PTSD or mental health condition while on active service. Furthermore, the Board determined there is insufficient evidence to support the applicant had a condition or experience that mitigated his misconduct. Based on this, the Board denied relief. 2. This board is not an investigative body. The Board determined despite the absence of the applicant’s medical records, they agreed the burden of proof rest on the applicant, however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant contentions of behavioral health concerns.. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction be 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. ADMINSTRATIVE NOTES: A review of the applicant’s records shows he is authorized additional awards not annotated on his DD Form 214 for the period ending 7 June 2000. As a result, amend his DD Form 214 by re-issuing him a DD Form 214 to show his characterization of service as honorable. 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 38 U.S. Code 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. 3. Title 38 U.S. Code 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. 4. Title 38, USC, 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. a. 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. b. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. 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 her 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. 5. 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 (Disability 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 (AR)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. 6. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirements, 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. 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 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635– 40 with the following caveats: a. U.S. Army Reserve (USAR) or Army National Guard (ARNG) Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active- duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation. b. Reserve Component Soldiers pending separation for In the Line of Duty injuries or illnesses will be processed in accordance with Army Regulation 40-400 (Patient Administration) and Army Regulation 635-40. c. Normally, Reserve Component Soldiers who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 (USAR Assignments, Attachments, Details, and Transfers) or discharged from the Reserve Component per Army Regulation 135–175 (Separation of Officers), Army Regulation 135–178 (ARNG and Reserve Enlisted Administrative Separations), or other applicable Reserve Component regulation. They will be transferred to the Retired Reserve only if eligible and if they apply for it. d. Reserve Component Soldiers who do not meet medical retention standards may request continuance in an active USAR status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Reserve Component Soldiers with non-duty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9–12. 8. AR 135-178 (Enlisted Administrative Separations) establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNG, ARNGUS and USAR. It states a Soldier is subject to discharge for unsatisfactory participation when it is determined the Soldier is unqualified for further military service when he/she is deemed an unsatisfactory participant per Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Provisions). Service may be characterized as under other than honorable conditions when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security violations. 9. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Paragraph 3-4(2) Entry-Level status. Service will be uncharacterized, and so indicated in block 24 of DD Form 214, except as provided in paragraph 3–9a. b. Paragraph 3-7 states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-9a Entry-level status separation. A separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status, except when— (1) Characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. (2) HQDA (AHRC–EPR–F), on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the Government, and Secretarial plenary authority. (3) The Soldier has less than 181 days of continuous active military service, has completed Initial Entry Training, has been awarded an MOS, and has reported for duty at a follow-on unit of assignment. 10. National Guard Regulation 600-200 (Enlisted Personnel Management) prescribes the criteria, policies, processes, procedures and responsibilities to classify, assign, utilize, transfer within and between States, provide Special Duty Assignment Pay, separate, and appoint to and from Command Sergeant Major enlisted Soldiers of the ARNG and Army National Guard of the United States (ARNGUS). Chapter 6 provides guidance on separation/discharge form State ARNG and/or Reserve of the Army. It states to refer to Army Regulation 135-178 (ARNG and Reserve Enlisted Administrative Separations), chapter 13, for discharge due to unsatisfactory participation. Commanders may initiate discharge or recommend retention of Soldiers who have accrued 9 or more unexcused absences within a 1-year period. Soldiers must be notified by registered or certified mail of the intent and projected discharge date. 11. 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. 12. 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. 13. 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. 14. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003023 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1