IN THE CASE OF: BOARD DATE: 15 November 2023 DOCKET NUMBER: AR20230003824 APPLICANT REQUESTS: * honorable physical disability separation with severance pay vice general discharge under honorable conditions in lieu of trial by court-martial * restoration of rank/grade to staff sergeant (SSG)/E-6 from private (PV1)/E-1 * backpay for unused leave * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army Discharge Review Board (ADRB) Case Report and Directive, Docket Number AR20200007262, dated 1 December 2022 * ADRB letter, dated 13 December 2022 * original voided DD Form 214 (Certificate of Release or Discharge from Active Duty), covering the period ending 22 October 2015 * upgraded DD Form 214, issued on 14 December 2022 FACTS: 1. The applicant states: a. He is requesting his rank/grade be restored to SSG/E-6, his separation narrative be amended to show disability separation with severance pay in the rank/grade of SSG/E-6, and backpay for unused leave. b. Following an ADRB decision in Docket Number AR20200007262, he is requesting his discharge be further updated to medical disability, as acknowledged by the upgrade of his discharge. His disability mitigated his discharge and did exist prior to his discharge, as outlined in the ADRB decision summary. The ADRB clearly articulates that his condition, if treated, would have led to continued service and the applicant acknowledges his faults and the reprimand as a result of his actions. c. The applicant contends that if the ADRB upgraded his discharge due to a failure to address his combat zone-related post-traumatic stress disorder (PTSD), generalized anxiety disorder, and bipolar disorder and stated as much in writing, then a change to his separation narrative to disability separation is also warranted. d. Without classification as a disability separation, the applicant is denied separation/severance pay although he did in fact serve over 6 years but less than 20 years, earning him protection from loss of retirement with an involuntary separation. Additionally, the applicant was reduced from SSG/E-6 to PV1/E-1 in accordance with Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions), chapter 10, but the criteria for his reduction in rank is no longer met with the ADRB upgrade of his discharge to general. He was also not paid his accrued leave due to the under other than honorable conditions status, but with the voided DD Form 214 and issuance of a new, upgraded DD Form 214, such a payment is allowed. 2. The applicant enlisted in the Regular Army on 10 April 2002 and was awarded the Military Occupational Specialty (MOS) 36B (Financial Management). 3. The applicant deployed to the following locations during the following timeframes: * Afghanistan, from 1 September 2003 through 21 May 2004 * Iraq, from 14 January 2005 through 26 December 2005 * Romania, from 14 May 2008 through 14 July 2008 * Bulgaria, from 15 July 2008 through 24 October 2008 4. A General Officer Memorandum of Reprimand (GOMOR), signed by the Commanding General, 21st Theater Sustainment Command, dated 1 April 2009, shows the following: a. The applicant was reprimanded for driving under the influence of alcohol on 21 March 2009, in Mannheim, Germany, detected during a routing vehicle inspection. Military Police administered a breath test revealing he his blood alcohol level was above the legal limit for operating a vehicle on German roadways. b. This reprimand was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice (UCMJ). He was to acknowledge the GOMOR and return it with any statements in rebuttal within 7 calendar days. A decision on imposing and filing the reprimand would be withheld until that time. 5. On 13 April 2009, the applicant acknowledged reading and understanding the administrative reprimand and indicated he did not desire to make a statement or rebuttal. 6. On 15 April 2009, the applicant’s immediate commander referred the applicant to the Army Substance Abuse Program (ASAP) screening suspended his driving privileges, and recommended filing of the administrative reprimand at the unit level for 1 year. 7. On 29 April 2009, the applicant’s brigade commander recommended filing the administrative reprimand in the applicant’s Official Miliary Personnel File (OMPF) and that he be considered for elimination due to serious patterns of misconduct. 8. On 28 May 2009, the Commanding General, 21st Theater Sustainment Command determined the administrative reprimand was to be filed permanently in the applicant’s OMPF. 9. The applicant’s Enlisted Record Brief (ERB) shows he was promoted to the rank/grade of SSG/E-6 on 1 February 2010. 10. The applicant again deployed to the following locations during the following timeframes: * Iraq, from 21 June 2010 through 20 June 2011 * Afghanistan, from 21 January 2013 through 17 October 2013 11. Multiple DA Forms 4187 (Personnel Action) reflect the following duty status changes pertaining to the applicant: * on 4 June 2015, his duty status changed from absent without leave (AWOL) to present for duty (PDY) * on 27 July 2015, his duty status changed from PDY to AWOL * on 12 August 2015, his duty status changed from AWOL to PDY * on 25 August 2015, his duty status changed from PDY to AWOL * on 2 September 2015, his duty status changed from AWOL to dropped from the rolls (DFR) 12. On 2 September 2015, a deserter warrant was issued for the applicant’s arrest. 13. A DD Form 458 (Charge Sheet), dated 16 September 2015, shows the applicant was confined and charged with the following: * absenting himself from his unit without authority from 30 May 2015 through 4 June 2015 * absenting himself from his unit without authority from 27 July 2015 through 12 August 2015 * absenting himself from his unit without authority from 25 August 2015 through his apprehension on 15 September 2015 14. On 17 September 2015, a court-martial packet was served to the applicant by Trial Defense Service (TDS). 15. On 22 September 2015, the applicant voluntarily requested discharge in lieu of trial by court-martial under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations) because of charges preferred against him under the Uniform Code of Military Justice (UCMJ). In his request, the applicant acknowledged the following: a. He was making this request of his own free will and was advised of the implications attached to it. He did not desire the opportunity for rehabilitation and had no desire to perform further military service. He acknowledged understanding the elements of the offenses with which he was charged and was guilty of at least one of the charges. He acknowledged that a punitive discharge could be imposed at a court-martial for the charges preferred against him. b. Prior to completing this request, he was afforded the opportunity to consult with counsel, who advised him of the nature of his rights, the elements of the offenses with which he was charged, the facts to sustain a finding of guilty, and the maximum permissible punishment if found guilty. c. He understood if his request for discharge were accepted, he would be discharged under other than honorable conditions, and understood the possible effects of such a discharge, that he may be deprived many or all Army benefits and may be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA). He also indicated he understood he would be automatically reduced to the rank/grade of PV1/E-1 if his request for discharge were approved and his service characterized as under other than honorable conditions. He acknowledged having been advised of his right to submit statements in his own behalf and did not submit any statements. 16. A Chapter 10 Transmittal Form shows the following chain of command endorsements of the applicant’s request for discharge under the provisions of AR 635- 200, chapter 10: * on 22 September 2015, his battalion commander recommended approval with an under other than honorable conditions discharge as appropriate for 3 counts of AWOL * on 23 September 2015, his brigade commander recommended approval with an under other than honorable conditions discharge as properly characterizing the applicant’s service 17. On 28 September 2015, the approval authority directed the applicant’s under other than honorable conditions discharge in lieu of trial by court-martial under the provisions of AR 635-200, chapter 10. He further directed the court-martial charges pending against the applicant be dismissed upon separation and that the applicant be reduced to the lowest enlisted grade. It was stipulated the applicant would be discharged without physical or mental examination, in accordance with AR 635-200, paragraph 1-32a, unless the applicant submitted a written request. 18. The applicant’s available service records do not contain a DA Form 3349 (Physical Profile) or any other medical documentation reflecting his diagnosis of and/or treatment for any mental health conditions while in the service. 19. The applicant’s available service records do not show: * he was issued a permanent physical profile rating * he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 20. The applicant has not provided any Defense Finance and Accounting Service (DFAS) Forms 702 (Military Leave and Earning Statement) and his available service records do not reflect the amount of unused leave he may have accrued at the time of his discharge in September 2015. 21. The applicant’s DD Form 214 shows the following: a. He was discharged on 22 October 2015, under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial, with a separation code of KFS (Good of the Service, in lieu of court-martial) and a Reentry Code of 4. b. His service was characterized as under other than honorable. c. His continuous honorable active service was from 10 April 2022 through 1 April 2011. d. He was credited with 13 years, 4 months, and 15 days of net active service, with lost time from 23 July 2014 through 8 August 2014; 30 May 2015 through 4 June 2015; 27 July 2015 through 12 August 2015; and 25 August 2015 through 15 September 2015. e. His rank/grade at the time of discharge was PV1/E-1. 22. A DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), provided in full to the Board for review, shows in pertinent part the following: a. In November 2017, the applicant applied to the ADRB, requesting an upgrade to his service characterization to honorable, contending the actions leading to his discharge were the result of severe, undiagnosed PTSD, of which both he and his chain of command were unaware at the time. b. While combat operations contributed greatly to his PTSD, toxic leadership within his unit which led to his undue persecution was a major factor in his PTSD. The applicant lists multiple counts of punishment for misconduct over the years, some of which he contends were founded and some unfounded, but contends he nonetheless served honorably under those conditions. He states in 2014 he was involved in an off- post incident in which gunshots were fired and he was subsequently arrested and charged, but he contends the disposition of the case supports that his actions were not those with which he was accused. However, the resulting response from his command is what led to his most traumatic state, causing him to go AWOL multiple times in a short period of time. His chain of command ignored regulatory guidelines in applying undue punishment and weaponizing his evaluation report, when the event was yet unresolved. These events and toxic conditions led him to a state in which he could not sleep at night and in order to protect his life, he had to leave that environment at all costs. 23. A 18 February 2020, letter from a Licensed Clinical Addiction Specialist at Southern Healthcare Network, Fayetteville, NC, shows the applicant was diagnosed with bipolar I disorder, PTSD, and cannabis use disorder. He has been receiving therapy from their office since 5 December 2019. 24. An ADRB Case Report and Directive, dated 1 December 2022, provided in full to the Board for review, shows in pertinent part the following: a. The applicant contends the actions leading to the discharge were the result of a severe undiagnosed PTSD. The applicant provided a letter from a medical facility indicating being treated for a diagnosis and treatment of "Bipolar I Disorder, Posttraumatic Stress Disorder, and Cannabis Use Disorder.'' The applicant's OMPF does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication. b. The ADRB voted to change the applicant's characterization of service to general (under honorable conditions) because the applicant's generalized anxiety disorder mitigated the applicant's basis of separation - AWOL. However, after taking the applicant's multiple AWOLs into consideration as well as the applicant's driving under the influence, the Board determined an honorable discharge was not warranted. c. The ADRB voted not to change the applicant’s reason for discharge or accompanying separation code as the reason the applicant was discharged was both proper and equitable, and requested by the applicant prior to discharge. His reentry code would not change, as the current code is consistent with the procedural and substantive requirements of the regulation. d. The ADRB Case Report and Directive is silent on restoration of the applicant’s rank/grade to SSG/E-6. 25. On 14 December 2022, the applicant’s prior DD Form 214 was voided and he was issued a new DD Form 214, showing the following: a. He was discharged on 22 October 2015, under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial, with a separation code of KFS (Good of the Service, in lieu of court-martial) and a Reentry Code of 4. b. His service was characterized as general, under honorable conditions. His characterization was upgraded per ADRB proceedings AR20200007262 on 1 December 2022, following application. c. His continuous honorable active service was from 10 April 2022 through 1 April 2011. d. He was credited with 13 years, 4 months, and 15 days of net active service, with lost time from 23 July 2014 through 8 August 2014; 30 May 2015 through 4 June 2015; 27 July 2015 through 12 August 2015; and 25 August 2015 through 15 September 2015. e. His rank/grade at the time of discharge was PV1/E-1. 26. MEDICAL REVIEW: a. Request: Following the ADRB board’s upgrade of his discharge to honorable, the applicant is requesting a correction of his record to show he was medically retired versus discharged in lieu of trial by court-martial. In addition, he requests restoration of rank/grade to staff sergeant (SSG)/E-6 from private (PV1)/E-1 and backpay for unused leave. b. This opine will not address the applicant’s restoration of rank/grade to staff sergeant (SSG)/E-6 from private (PV1)/E-1 and backpay for unused leave. These issues will be deferred to the board. The focus of this opine will be on the request for a medical retirement based on his mental health condition. c. 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 on 10 April 2002. * The applicant deployed to the following locations during the following timeframes: * Afghanistan, from 1 September 2003 through 21 May 2004 * Iraq, from 14 January 2005 through 26 December 2005 * Romania, from 14 May 2008 through 14 July 2008 * Bulgaria, from 15 July 2008 through 24 October 2008 * Iraq, from 21 June 2010 through 20 June 2011 * Afghanistan, from 21 January 2013 through 17 October 2013 * General Officer Memorandum of Reprimand (GOMOR), signed by the Commanding General, 21st Theater Sustainment Command, dated 1 April 2009, shows applicant was reprimanded for driving under the influence of alcohol on 21 March 2009, in Mannheim, Germany, detected during a routing vehicle inspection. Military Police administered a breath test revealing his blood alcohol level was above the legal limit for operating a vehicle on German roadways. * On 15 April 2009, the applicant’s immediate commander referred the applicant to the Army Substance Abuse Program (ASAP) screening suspended his driving privileges, and recommended filing of the administrative reprimand at the unit level for 1 year. * On 29 April 2009, the applicant’s brigade commander recommended filing the administrative reprimand in the applicant’s Official Military Personnel File (OMPF) and that he be considered for elimination due to serious patterns of misconduct. * On 2 September 2015, a deserter warrant was issued for the applicant’s arrest. A DD Form 458 (Charge Sheet), dated 16 September 2015, shows the applicant was confined and charged with the following: * absenting himself from his unit without authority from 30 May 2015 through 4 June 2015 * absenting himself from his unit without authority from 27 July 2015 through 12 August 2015 * absenting himself from his unit without authority from 25 August 2015 through his apprehension on 15 September 2015 * On 22 September 2015, the applicant voluntarily requested discharge in lieu of trial by court-martial under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations) because of charges preferred against him under the Uniform Code of Military Justice (UCMJ). * On 28 September 2015, the approval authority directed the applicant’s under other than honorable conditions discharge in lieu of trial by court-martial under the provisions of AR 635-200, chapter 10. He further directed the court-martial charges pending against the applicant be dismissed upon separation and that the applicant be reduced to the lowest enlisted grade. It was stipulated the applicant would be discharged without physical or mental examination, in accordance with AR 635-200, paragraph 1-32a, unless the applicant submitted a written request. * The applicant’s DD Form 214 indicates he was discharged on 22 October 2015, under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial, with a separation code of KFS (Good of the Service, in lieu of court-martial) and a Reentry Code of 4. His service was characterized as under other than honorable. * His characterization was upgraded per ADRB proceedings AR20200007262 on 1 December 2022. d. 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, ABCMR Record of Proceedings (ROP), ADRB Case Report and Directive, and two DD Forms 214. The VA electronic medical record and DoD health record available for review through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. e. The applicant requests his discharge be further upgraded to medical disability following an ADRB decision in Docket Number AR20200007262. He contends his disability mitigated his discharge and existed prior to his discharge, as outlined in the ADRB decision summary. The applicant further contends that if the ADRB upgraded his discharge due to a failure to address his combat zone-related post-traumatic stress disorder (PTSD), generalized anxiety disorder, and bipolar disorder and stated as much in writing, then a change to his separation narrative to disability separation is also warranted. Applicant reports that without classification as a disability separation, he is denied separation/severance pay although he served over 6 years but less than 20 years, earning him protection from loss of retirement with an involuntary separation. Additionally, the applicant was reduced from SSG/E-6 to PV1/E-1 in accordance with Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions), chapter 10, but the criteria for his reduction in rank is no longer met with the ADRB upgrade of his discharge to general. He was also not paid his accrued leave due to the under other than honorable conditions status, but with the voided DD Form 214 and issuance of a new, upgraded DD Form 214, such payment is allowed. f. During his time in service, per a note dated 13 October 2006, the applicant was referred to FAP due to an altercation with his spouse that resulted in a 72-hour no contact order. The applicant was provided with couples counseling and anger management services. However, he was not diagnosed with a mental health condition. A Deployment Psychological Screen, dated 22 September 2009, identified no major mental health concerns and the applicant indicated all was well and no mental health intervention was needed. A 16 July 2015 Mental Status Evaluation indicates the applicant had no mental health diagnosis, could understand and participate in administrative proceedings, and appreciated the difference between right and wrong, and met medical retention standards. Overall, the applicant’s service record did not contain a Physical Profile or any other medical documentation reflecting diagnosis of a mental health condition while in service. The applicant’s available service record does not show he was issued a permanent physical profile rating, suffered from a mental health condition that affected his ability to perform the duties, failed retention standards, or rendered him unfit for military service. g. The applicant submitted a brief letter dated 18 February 2020, from a Licensed Clinical Addiction Specialist at Southern Healthcare Network, Fayetteville, NC, stating the applicant was diagnosed with bipolar I disorder, PTSD, and cannabis use disorder and has been receiving therapy from their office since 5 December 2019. However, the letter does not indicate the basis for the applicant’s diagnosis. h. The VA electronic record indicates the applicant is currently 90% service connected including 70% for Generalized Anxiety Disorder. A C & P evaluation dated 20 March 2020 did not diagnose him with PTSD and states his symptoms did not meet the diagnostic criteria for PTSD under DSM-5 criteria. However, the applicant was diagnosed with Generalized Anxiety Disorder. i. Based on all available information, it is the opinion of this Agency Behavioral Health Advisor that there is insufficient evidence to support a referral to the IDES process at this time. Although the applicant has been service connected for Generalized Anxiety Disorder, 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 VA disability rating would not imply failure to meet Army retention standards at the time of service. A subsequent diagnosis of Generalized Anxiety Disorder through the VA is not indicative of an injustice at the time of service. Furthermore, even an in-service diagnosis of Generalized Anxiety Disorder is not automatically unfitting per AR 40-501 and would not automatically result in the medical separation processing. Based on the documentation available for review, there is no indication that an omission or error occurred that would warrant a referral to the IDES process. In summary, his separation process appears proper, equitable and free of error, and insufficient new evidence has been provided to determine otherwise. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Not applicable. (2) Did the condition exist or experience occur during military service? Not applicable. (3) Does the condition or experience actually excuse or mitigate the discharge? Not applicable. 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, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. 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 the IDES process at this time. It was noted in the opine that an in-service diagnosis of Generalized Anxiety Disorder is not automatically unfitting per AR 40-501 and would not automatically result in the medical separation processing. 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. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. ? 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. 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. 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. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 4. 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 (DES) 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 (AR) 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 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. 5. AR 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. 6. 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. 7. AR 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a voluntary request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. A discharge under other than honorable conditions (UOTHC) is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. 8. AR 600-8-19 (Enlisted Promotions and Reductions), prescribes policies and procedures governing promotions and reductions of Army enlisted personnel. Paragraph 10-1 (Administrative Reductions) states that an administrative reduction is a reduction in grade not as a result of a court-martial sentence or any other action under the Uniform Code of Military Justice (UCMJ). When the separation authority determines a Soldier is to be discharged from the service under other than honorable conditions, he or she will be reduced to the lowest enlisted grade. Board action is not required for this reduction. The commander having separation authority will, when directing a discharge under other than honorable conditions or when directed by higher authority, direct the Soldier to be reduced to the rank/grade of private (PV1)/E-1. If discharge is approved under other than honorable conditions but is suspended, the Soldier will not be reduced under this provision. 9. AR 637-2 (Separation Pay (Non-Disability) and Levels of Payment) prescribes policy and guidance relating to the qualification(s) for separation payment (non-disability). The non-disability separation pay program provides a one-time, lump-sum payment to eligible Regular Army and U.S. Army Reserve Soldiers who are being involuntarily discharged or released from active duty or active service short of reaching retirement eligibility who meet each of the following five conditions outlined in DoDI 1332.29 (Eligibility of Regular and Reserve Personnel for Separation Pay) , which are as follows: a. The Soldier is on active duty/active service (AD/AS) and has completed at least 6 years, but fewer than 20 years, of active service. For Reserve members not on the AD/AS list when separated, 6 years of continuous AD/AS must have preceded immediately before such separation. A period of AD/AS is continuous if any break in military service does not exceed 30 days. b. The Soldier’s separation is characterized as “Honorable” as defined in DoD Instruction 1332.14. c. The Soldier is being involuntarily separated by the Military Service concerned through either the denial of reenlistment and/or extension or the denial of continuation on active duty or in an active service status, under one of the following specific conditions: (1) The Soldier is fully qualified for retention, but is denied reenlistment and/or extension or continuation by the Military Service concerned. This includes a Soldier who is eligible for promotion as established by the Secretary of the Military Department concerned, but is denied reenlistment/extension or continuation on AD by the Military Service concerned under established promotion or high year of tenure policies. (2) The Soldier is fully qualified for retention and is being involuntarily separated under a reduction in force by authority designated by the Secretary of the Military Department concerned as authorized under Title 10 U.S. Code. (3) The Soldier is a regular officer, commissioned, or warrant, who is being separated under Title 10 U.S. Code 36 (except under Title 10 U.S. Code section 630 (1) (A)) or Title 10 U.S. Code section 580, Title 10 U.S. Code section 1165; a Reserve commissioned officer, separated, or transferred to the Retired Reserves under Title 10 U.S. Code, Chapter 573, Title 10 U.S. Code, Chapter 861 or a Reserve warrant officer who is separated for similar reasons under Service policies. (4) The Soldier, having been denied reenlistment/extension or continuation on AD/AS by the Military Service concerned, accepts an earlier separation from AD/AS. d. The Soldier has entered into a written agreement with the Military Service concerned to serve in the Ready Reserve of a Reserve Component of the Military Services for a period of not less than 3 years following the separation from AD/AS. e. The Soldier has initialed and signed DA Form 7783 (Written Service Agreement) with the mandatory disclosure statement: “If I qualify for military retired or retainer pay in accordance with Title 10 U.S. Code or Title 14 U.S. Code and/or the Department of Veterans Affairs disability compensation pursuant to the laws administered by the Secretary of Veterans Affairs after receiving Involuntary Separation Pay (known as “ISP”), I will be subject to a deduction from such retired or retainer pay, or from disability compensation in the total amount of any ISP paid, as prescribed under Title 10 U.S. Code 1174.” 10. Title 37, U.S. Code, section 501 (Payments for unused accrued leave) states a member of the Army, Navy, Air Force, Marine Corps, Space Force, Coast Guard, or National Oceanic and Atmospheric Administration who is discharged under other than honorable conditions forfeits all accrued leave to his/her credit at the time of his/her discharge. 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. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003824 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1