IN THE CASE OF: BOARD DATE: 2 August 2023 DOCKET NUMBER: AR20230004982 APPLICANT REQUESTS: correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her narrative reason for separation as "disability, permanent." APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Online Application with signature page, dated 13 August 2022 * Online Application with signature page, dated 21 April 2023 * SGLV 8286 (Servicemembers’ Group Life Insurance Election and Certificate), dated 27 April 2007 * DA Form 4187 (Personnel Action), dated 4 June 2007 * DA Form 4187, dated 5 June 2007 * DD Form 214, for the period ending 25 October 2007 * DD Form 93 (Record of Emergency Data), dated 27 August 2009 * Enlisted Record Brief (ERB), dated 14 September 2009 * Orders 300-0507, issued by the U.S. Army Combined Arms Support Command and the Sustainment Center of Excellence, Fort Lee, VA, dated 27 October 2009 * Transcript, dated 29 October 2009 * DD Form 214, for the period ending 30 October 2009 * Department of Veterans Affairs (VA), Certificate of Training, dated 16 March 2018 * Student Transcript, Antonelli College, dated 20 November 2019 * Student Transcript Key, College, undated * letter, VA Benefits Summary, dated 12 September 2021 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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, in effect, she was discharged because of a diagnosed mental health condition which she suffered from throughout her enlistment. She was diagnosed with Major Depressive Disorder shortly after completing basic training and later discharged for complications of this disorder in 2009. The VA service connected the condition and awarded the specific condition a 70 percent (%) disability rating. Based upon this rating, the condition is proven to be caused by or aggravated by her military service. Major Depressive Disorder is not a curable condition. 3. The applicant enlisted in the Army National Guard of the United States on 27 April 2007. She was ordered to active duty for the completion of her initial entry training (IET) on 4 June 2007. Upon completion of her training, she was awarded military occupational specialty (MOS) 92F (Petroleum Supply Specialist) and released from active duty. 4. A National Guard Bureau (NGB) Form 22 (NGB – Report of Separation and Record of Service), dated 26 August 2009, shows the applicant was honorably discharged from the Mississippi Army National Guard for the purpose of enlistment in another component of the U.S. Armed Forces. 5. The applicant enlisted in the Regular Army on 27 August 2009. The highest rank she attained was private first class/E-3. 6. She underwent a mental health evaluation on 15 September 2009. Her provisional diagnosis was Depressive Disorder NOS [not otherwise specified]. The evaluating provider determined the applicant was mentally responsible and had the mental capacity to understand and participate in administrative proceedings. 7. The applicant was formally counseled on 16 September 2009 of her commander’s intent to initiate actions to separate her from service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, per the Community Mental Health Services recommendation. 8. A DD Form 2807-1 (Report of Medical History), dated 21 September 2009, and the corresponding DD Form 2808 (Report of Medical Examination), show the applicant underwent a medical examination for separation. Her diagnosis of depression was noted; however, she was found medically qualified for separation. 9. The applicant was notified on 14 October 2009 of her commander’s intent to initiate separation actions against her under the provisions of Army Regulation 635-200, Chapter 5, based on other mental conditions. The reason for the proposed action was the applicant's diagnosis of depressive disorder. She acknowledged receipt of the notification on the same date. 10. On 15 October 2009, the applicant acknowledged the basis of the contemplated action to separate her under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of other mental conditions. She accepted the opportunity to consult with appointed counsel and elected to provide a statement in her own behalf, wherein she stated, in effect: a. She arrived at her unit on 27 August 2009 and encountered some problems. She felt sad and overwhelmed. She had no transportation, access to finances, or communication with her family. She was referred to the Chaplain. b. On 2 September 2009, the first sergeant told her she had to go to "Popular Springs" for a few days. She did not think she needed to be hospitalized. She informed the staff at Popular Springs that she did not need to be there, and she wanted to leave. She was told she would be considered absent without leave if she left. She attended therapy sessions there until 14 September 2009. c. Upon returning to her unit, she was informed by the first sergeant that she was being chaptered out of the Army. The first sergeant stated because she was hospitalized for over 5 days it was an automatic chapter. d. She went for her mental health evaluation the following day. She told the doctor she did not want to get out of the Army. The doctor informed her the paperwork to begin the chapter had been sent to her on 2 September 2009, and it was out of the doctor’s hands. All she could do was give consent. The applicant did not understand how she could be chaptered for being in the hospital for over 5 days when the chapter paperwork was initiated prior to her full 5-day hospitalization. She agreed to attend an outpatient treatment program because she did not want to be at her unit where she felt like she was being mistreated. e. She continued with her programs and treatment because she thought it would help her remain in the Army, but she feels like she was penalized for seeking help instead. She did not feel like she should be judged for her bad days because everyone had them. She did not feel like she was heard, and her thoughts and feelings did not matter because she was only a private first class. 11. The applicant's immediate and intermediate commanders formally recommended the applicant's separation from service under the provisions of Army Regulation 635- 200, paragraph 5-17. The intermediate commander further recommended an uncharacterized discharge. 12. On 26 October 2009, the separation authority approved the recommended discharge, waived the rehabilitative transfer requirements and directed a service characterization of uncharacterized. 13. The applicant was discharged on 30 October 2009 under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of condition, not a disability. Her DD Form 214 shows she was credited with 2 months and 4 days of net active service. Her service was uncharacterized. 14. The Army Discharge Review Board reviewed the applicant’s request for upgrade of her uncharacterized discharge and change to the narrative reason for separation on 19 October 2018. After careful review, the Board determined that she was properly and equitably discharged and denied her request. The Board reconsidered her request on 28 July 2022. The Board voted to upgrade the applicant’s characterization of service to Honorable based upon the circumstances surrounding the discharge. The Board determined the narrative reason for separation was proper and equitable and voted not to change it. 15. The applicant was issued a new DD Form 214 on 7 December 2022, which shows she was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of condition, not a disability on 30 October 2009. 16. The applicant provides the following: * SGLV 8286, dated 27 April 2007 * DA Form 4187, showing advancement to private/E-2, dated 4 June 2007 * DA Form 4187, showing advancement to private first class/E-3, dated 5 June 2007 * DD Form 214, for the period ending 25 October 2007 * DD Form 93, dated 27 August 2009 * ERB, 14 September 2009 * Orders 300-0507, U.S. Army Combined Arms Support Command and the Sustainment Center of Excellence, Fort Lee, VA, dated 27 October 2009 * GoArmyEd Transcript, 29 October 2009 * DD Form 214, for the period ending 30 October 2009 * Certificate of Training, VA Police Officer Standardized Training Course, dated 16 March 2018 * Student Transcript, Antonelli College, Paralegal Studies Program, dated 20 November 2019 * Student Transcript Key, College, undated * letter, VA Benefits Summary, dated 12 September 2021, which shows the applicant has a 90% combined service connected disability rating 17. Army Regulation 635-200, paragraph 5-17, states commanders who are special court-martial convening authorities may approve separation under this paragraph based on other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. 18. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 19. 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/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is again applying to the ABCMR requesting a discharge upgrade and a change in the narrative reason for her separation. “My current discharge is listed as "condition, not a disability." However, I was discharged for a diagnosed mental condition I suffered from throughout my enlisted time period. I was diagnosed shortly after Basic Training with Major Depressive Disorder and Anxiety in 2007. I was discharged in 2009 for complications of this mental disorder. I was service connected in 2012 for the mental condition. I have been at 70% service connection for this same mental condition since approximately 2020. I believe that my separation reasoning should be changed from "condition, not a disability" to "disability, permanent" because I suffered with this condition while in service and it has been medically proven that the condition was either caused by military service or aggravated by service. Permanent because Major Depressive Disorder/Anxiety is not a curable condition. I am a law-abiding citizen. I have completed a degree program with the assistance of Vocational Rehabilitation. I am currently employed at a VA Medical Center where I work and dedicate my time to assisting other veterans. I am asking that you reconsider upgrading my character of service and narrative reason for separation.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The revised DD 214 for the period of Service under consideration shows she entered the regular Army on 27 August 2009 and received an honorable discharge on 30 October 2009 under the separation authority provided by paragraph 5-17 of AR 635-200, Active Duty Enlisted Administrative Separations (6 June 2005): Other designated physical or mental conditions. Her separation code LFV denotes “Condition, Not A Disability.” d. The applicant’s initial request for a discharge upgrade and change of the narrative reason for her separation was denied by the ADRB on 8 November 2018 (AR20170019852). When she made a similar request in April 2021, the ADRB granted partial relief on 1 December 2022 (AR20210002686), voting to change the characterization of her service to honorable but not change the narrative reason for separation. Response to Contention(s): The applicant contends the narrative reason for the discharge requires a change. The Board considered this contention and determined the narrative reason is appropriate as the applicant was discharged for a condition, not a disability, depressive disorder. The Board voted a change to the narrative reason is not warranted as a condition not a disability was the reason for the discharge. The applicant contends being diagnosed with major depressive disorder and anxiety by the VA. The Board determined that this contention was valid and voted to upgrade the characterization of service due to an association between Dysthymic Disorder, Adjustment Disorder with Anxiety and Depressed Mood and Generalized Anxiety Disorder and occupational functioning. The Board determined that the characterization of service was inequitable based on the circumstances surrounding the discharge (OBHI diagnoses). Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to Honorable. The Board determined the narrative reason/SPD code and RE code were proper and equitable and voted not to change them.” e. The Board also noted the opinion of ARBA medical advisor as to the appropriateness of her 5-17 discharge: “Does the condition or experience outweigh the discharge? No. The Board concurred with the opinion of the Board’s Medical Advisor, a voting member that the applicant’s Dysthymic Disorder, Adjustment Disorder with Anxiety and Depressed Mood and Generalized Anxiety Disorder would mitigate misconduct associated with the discharge; the discharge was not misconduct based but was based on the existence of the Depressed Mood condition. As a result, the ADRB applied liberal consideration and found that the applicant’s Dysthymic Disorder, Adjustment Disorder with Anxiety and Depressed Mood and Generalized Anxiety Disorder did not outweigh the discharge.” f. This medical advisory will concentrate on new medical evidence and other probative evidence submitted by the applicant. g. No new medical documentation or probative evidence was submitted with the application. h. Review of her records in JLV shows the applicant was granted a service- connected disability rating for dysthymic disorder on 30 March 2011 the rating was increased to 70% effective 3 December 2019. This was before the 2022 ADRB decision thus previously evaluated by the medical advisor associated with that case. i. It is opinion of the ARBA medical advisor that a change in her separation authority and/or a referral of her case to the Disability Evaluation System remains unwarranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was 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 the medical review the Board concurred with the advising official finding a change in the applicant’s narrative reason for separation and referral to the Disability Evaluation System is without merit. However, the Board determined the applicant completed her training and was awarded military occupational specialty (MOS) 92F (Petroleum Supply Specialist) and was released from active duty training (REFRAD). Regulatory guidance indicates that USAR and ARNG Soldiers are granted an honorable discharge if they complete their active-duty training, receive an MOS and are returned to their units. This is the applicant’s case. Therefore, the Board agreed that the applicant’s discharge should be upgraded to “honorable” for this term of service. Therefore, the Board granted partial relief. 2. Referral to the IDES occurs when a Soldier has one or more conditions which appear to fail medical retention standards as documented on a duty liming permanent physical profile. The DES compensates an individual only for service incurred medical 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. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending 25 October 2007 to show her characterization of service as honorable. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to her narrative reason for separation reflecting as "disability, permanent." 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, USC, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, Section 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. Title 10, USC, Section 1201 provides for the physical disability retirement of a member who has either 20 years of service or a disability rating of 30% or greater. 4. Title 10, USC, Section 1203 provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 5. Title 10, USC, 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, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES: * 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) * receive a permanent medical profile, P3 or P4, and are referred by an Military Occupational Specialty Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, HRC c. The PDES assessment process involves two distinct stages: the MEB and the 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 Physical Evaluation Board (PEB) is an administrative body possessing the authority to determine whether 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 are either 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 retirement payments and have access to all other benefits afforded to military retirees. d. 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. 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. 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 awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. 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. 7. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities (VASRD). The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 8. Army Regulation 635-40 establishes the Army Disability Evaluation System (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 office, grade, rank, or rating. It states, in part, only the unfitting conditions or defects and those that contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. 9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-17, states commanders who are special court-martial convening authorities may approve separation under this paragraph based on other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. 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, which is sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. 10. 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 Discharge Review Boards (DRB) and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder; 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 to 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 misconduct that led to the discharge. 11. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and Boards for Correction of Military/Naval Records (BCM/NR) 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. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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) AR20230004982 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1