IN THE CASE OF: BOARD DATE: 29 November 2023 DOCKET NUMBER: AR20230004071 APPLICANT REQUESTS: reconsideration of his prior request * removal of his Bar to Reenlistment * a medical physical disability discharge * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * applicant authored chronology * applicant authored confidential statement * applicant authored job experience statement * Noncommissioned Officer (NCO) training certificate, dated 6 December 1981 * Army Commendation Medal (ACM) certificate, dated 11 June 1981 * Army Achievement Medal (AAM) certificate, dated 15 February 1983 * Letter of Commendation, dated 4 August 1983 * AAM certificate, dated 1 May 1986 * Letter of Appreciation, dated 2 May 1986 * Letter of Appreciation, undated * DA Form 2166-7 (NCO Evaluation Report), covering the period June 1988 to April 1989 * applicant statement contesting DA Form 2166-7 * DA Form 873 (Certification of Clearance and/or Security Determination, dated 16 April 1990 * SF 312 (Classified Information Nondisclosure Agreement), dated 22 June 1990 * Standard Form (SF) 88 (Report of Medical Examination), dated 6 August 1990 * SF 93 (Report of Medical History), dated 6 August 1990 * DD Form 214 (Certification of Release or Discharge from Active Duty), effective 10 August 1990 * Honorable Discharge Certificate, dated 10 August 1990 * Department of Veterans Affairs (VA) service-connected disabilities, dated 1 November 2019 * Social Security Administration (SSA) statement, effective December 2022 * DisabledVeterans.org article, dated 24 January 2017 * Arsenal Accents article November-December 1987 * Department of Justice (DOJ) article, dated 21 October 2016 * 10 (ten) photos * medical records * documents related to his civilian employment * correspondence to and from non-Army Review Boards Agency entities FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20190002003 on 3 August 2021. 2. The applicant states his new evidence includes information of a legitimate confidential statement of 7 pages that tells the events of his permanent change of station (PCS) movement to Germany in September 1987. He is also including a Noncommissioned Officer Evaluation Report (NCOER) that was generated illegally by ex-commanders and NCOs of his last unit. They got together to jeopardize his military career. He was receiving too much harassment and persecutions from First Sergeant . He was intimidated by both commanders to sign that NCOER, but he refused to sign completely. His deformities in both feet were not operated [on] completely prior to entering military service on 15 June 1978. It was not operated either after the running physical training accident on 5 December 1989. It was operated either during the Transition Point at Fort Jackson, SC. He had reported a complaint against the Department of Veterans Affairs and Department of Defense under Title 18, United States Code (USC) [under the Freedom of Access to Clinic Entrances (FACE) Act] to the Department of Justice and other Federal Agencies. He is requesting a medical discharge from military service effective 10 August 1990. He is receiving retirement benefits from the Social Security Administration. 3. The applicant provides a self-authored chronology which is available to the Board in its entirety. It states, in pertinent part: a. He had reenlisted for the second time in the Army. Around September 1987 he received permanent change of station (PCS) order for movement to Germany on 22 December 1987. At the 21st Replacement in Frankfurt, Germany, he received orders for assignment to the HHB 2/75th Field Artillery Unit to be the Battalion Nuclear Biological Chemical (NBC) Operations NCO at Fliegershorst Kaserne, Germany. He lived in the barracks for 7 months and moved to the Housing Living Quarters on post around July 1988. He was flagged by his First Sergeant (1SG) for not maintaining the weight and fitness standards. b. He had requested support from a Special Assistant to effectively run the unit’s NBC Room from June to July 1988 from the Platoon Sergeants and Commanders. At the end of July 1988, he moved on post as he had been waiting for his family and belongings to join him in Germany. c. In the first week of September 1988, he had failed a Command Inspection Program NBC Room inspection. He had not received a courtesy inspection prior to that big inspection. He did not receive the support for an additional NBC Specialist. He was the only one responsible for the failure. d. He was trying to lose weight to eliminate that flag but could not. He was feeling and receiving too much harassment from 1SG at that time. His unit spent most of the time out in the field executing different missions. He did not receive counseling from dietitians for controlling his eating habits. The 3,500 calories salty MRI's [sic] pack twice a day plus a hot meal, the pain in his back, elbow and feet conditions were not allowing him to stay in the military. The hazardous toxic and dangerous materials he had been exposed to during his military career and his out of control eating habits were the major cause of his failure causing stress and depression at the time. e. He was continuously harassed by 1SG . Due to his continuous persecution, in September 1988, he went to speak to the Battalion Sergeant Major (SGM), who was from the Philippines, to request a unit transfer. He had authorized the transfer to the Service (SVC) Battery (BTRY) 2/75th. f. In November 1988, 1SG came to his new unit and requested a reunion with him and his new 1SG behind closed doors. These actions and behavior intimidated him. 1SG pulled out a big stack of documents in reference to his flag originating at his old unit. 1SG requested he sign those documents, be weighed and his waist measured. After he completed recording the new information, he pulled out a letter from his wife. 1SG questioned him about some personal issues without referring him to a social worker. 1SG gave him an order to move into the barracks and cancelled living quarters on post. g. He was surprised by the intervention and that his new 1SG did not back him up and allowing 1SG conduct and behavior against him. Most of the chain of command knew of 1SG ’s future promotion as Brigade Command Sergeant Major (CSM) by the end of 1990; it looks like no one wanted to disagree with him. During April and May of 1989, the whole Brigade changed names to the 3/20th including all of the Battalion and units or Batteries of the 2/75th Brigade. 1SG promotion gave him authority over the SGM that had authorized his transfer. h. His new Platoon Sergeant at the Service Battery 2/75th was Samoan. His new Company 1SG was a native US Citizen. i. In November 1988, he moved into his new barracks. 1SG called him to the BN CSM office on the day his CSM (from the Philippines) was on leave; 1SG was covering CSM duties for the day. Again, behind closed doors, 1SG tried incriminating him of something that happened and having him sign some documents without reading him his legal rights as a Soldier. He was obligated by him to fill out documents, which he did and returned back to him. He contemplated taking leave following this persecution. j. In December 1988, his new unit went to a Field Training Exercise in support of other units. They returned from the field by the first week of January 1989. He was the NBC NCO at his new unit and in supporting of his new Platoon Sergeant (from Samoa). His commander was a Captain and his 1SG was black from the US. Both were good leaders but they did not protect him from 1SG , since he had enough power and they knew he was getting promoted. k. On 26 January 1989, 1SG came to the Service Battery barracks with all of his NCOs to test and monitor an Army Physical Fitness Test. His evaluator was 1SG . It was constant persecution and intimidation from this commander towards him. He failed the test that day. A week later he received clearance papers since he was being kicked out for not meeting physical standards and failing an NBC Room inspection. l. The first week of February 1989, the whole Battalion went to the field for approximately 35 days. He was part of the support of Field Artillery operations in conjunction with his NBC officer First Lieutenant (1LT) and the other operations NCOs and officers of the Battalion. One day he was in charge of assigning guard duties. He went to Private First Class (PFC) to tell him he would be on guard duty. PFC reacted by complaining and answering in a disrespectful manner with explicit language. He wrongfully overreacted answering back with the same explicit language. PFC raised his hand, and he reacted wrongfully as an NCO. His intentions were not to harm him. PFC ’s words and gestures had provoked him. He should have controlled himself or wrote PFC up for such expressions. PFC ’s chain of command included his squad leader, Staff Sergeant (SSG) and 1SG . m. 1SG asked him for a statement of the incident with PFC through his platoon sergeant. He complied. 1SG never went through his new 1SG. His rights were violated by not receiving legal advice or counseling under the Uniformed Code of Military Justice (UCMJ). n. On 28 March 1989, 1SG called him to the Battalion Commander’s office without the presence of his new 1SG or platoon sergeant. 1SG removed one rank off his collar in front of the Battalion Commander, Major . This was a violation of his rights as an NCO under UCMJ. o. On 20 April 1989, following his reduction from SSG to Sergeant (SGT), 1SG M_ and the Battalion Commander order him to report to his office. 1SG had ordered the illegal creation of an NCO Evaluation Report to read in front of the Commander. He felt intimidated by both Major and 1SG . They asked him to sign that document, he refused to sign it because the raters were not his immediate raters from the Service Battery. It was not forwarded to him but given to him in person under intimidation. They falsified box 2 (part 1 administrative data) to show forwarded to NCO. This act is an injustice against him as an NCO; a persecution against him in a very discriminating manner. Since he had refused to sign that document is to say he does not concur with the raters. He was set up by commanders, 1SG , Major , MSG , and SSG . A wrong social security number was written with errors in the back page of that evaluation. A copy of the original report is attached as evidence of illegal acts, discrimination, and perjury by his former commanders against him. His immediate rater was supposed to be the supply sergeant (the Samoan) of the Service Battery 2/27th. 1SG ordered Change of Rater in the reason for the submission. p. He tried to lose weight. Most of the time they were out in the field eating MRE’s twice at day, almost 8,000 calories plus a hot meal daily. His health conditions prior to entering military service, during service and after service were diagnosed and written in his military medical records and VA medical records for more than 40 years. On 4 December 1989, he suffered an accident with his right foot and the medical did not refer him for an operation immediately. From 2 August 1990 to 9 August 1990, he received continuous medical evaluation from military and VA doctors at Fort Jackson, SC transfer point. He received an honorable discharge from the service on 10 August 1990, bar of reenlistment. q. His only physical entrance [examination] was on 15 June 1978 at Fort Buchannan, San Juan, Puerto Rico. His first reenlistment was in 1982 for 6 years, and second reenlistment was in 1987. He did not have a physical evaluation for either reenlistment. 4. The applicant provides self-authored statement; however, it is the same account as his chronological account. This statement is available for the Board’s review in its entirety. 5. The applicant provides a self-authored job experience statement, which is available to the Board in its entirety. It states, in pertinent part: a. He has a professional background in the US Army working as Chemical Operations Specialist with identifiers: Language Specialist and Technical Escort for the Transportation of Hazardous Materials. He received technical training in the pharmaceutical industry from 1991 to 2010. He worked for Imperial Chemical Industries, AstraZeneca, IPR Pharmaceuticals and Eli Lilly Company del Caribe as a Plant Utilities Operator Senior. 6. The applicant underwent a medical examination on 15 June 1978 for the purpose of enlistment. His SF 93 shows he reported he was in good health without any signification defects. The corresponding SF 88 shows a note of asymptomatic flat feet and vision correction. He was found qualified for service and assigned a physical profile of 111121. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 7. The applicant enlisted in the Regular Army for a period of 3 years on 25 September 1978. He completed his required training and was assigned the military occupational specialty (MOS) 54E (chemical operations specialist) effective 30 March 1979. He reenlisted in the Regular Army on 3 August 1981 and 6 May 1987. 8. The applicant’s Personnel Qualification Record (PQR) shows he was enroute to Germany effective 9 November 1987. He was assigned to HHB 2/75th effective 24 December 1987. 9. On 2 August 1988, the applicant was entered in the Weight Control Program. A Report to Suspend Favorable Personnel Actions (FLAG) was initiated on 31 August 1988 in response to his placement on the Weight Control Program. 10. The applicant received a letter of counseling on 25 January 1989 concerning his lackadaisical approach concerning his duties and responsibilities towards his subordinate soldiers. 11. An Army Physical Fitness Test (APFT) Scorecard shows the applicant failed the run portion of the test on 26 January 1989. 12. A DA Form 4856 (General Counseling Form) shows on 26 January 1989, the applicant was counseled for not meeting his weight loss goals and continuing to be overweight. He was advised he would remain on the Weight Control Program until he meets the height and weight standards and would be administratively discharged if he continued to fail to lose weight and that such an elimination could result in the issuance of a general or other than honorable discharge, a loss of eligibility for veteran benefits, and could encounter substantial prejudice in civilian life. 13. A FLAG was initiated on 27 January 1989 in response to the applicant’s APFT failure. 14. The applicant was issued a memorandum, subjected: Notification of Substandard Duty Performance, dated 7 March 1989. Page 1 of this document is missing; however, page 2 shows the applicant’s signature acknowledging receipt of this letter. 15. A FLAG was initiated on 10 March 1989 due to adverse action. 16. A DA Form 2627 (Record of Proceedings under Article 15, UCMJ) shows the applicant accepted nonjudicial punishment (NJP) on 28 March 1989 for: * on or about 2 March 1989, did unlawfully slap PFC on the hand with his hand * on or about 2 March 1989, did wrongfully communicate to PFC a threat to injure him by saying to him, “I’m going to kick your [explicit] you [explicit].” * on or about 2 March 1989, did wrongfully us provoking words, to wit; “suck my [explicit], suck my [explicit], suck it, suck it” or words to that effect and gestures, to wit: pretending to masturbate while jerking his hand near his groin in an up and down motion. 17. The applicant’s punishment was to be reduced in rank from Staff Sergeant/E-6 to Sergeant/E-5. 18. The applicant received counseling on 10 April 1989 for continuing to not meet his weight loss goals and continuing to be overweight. He was advised he would remain on the Weight Control Program until he meets the height and weight standards and would be administratively discharged if he continued to fail to lose weight and that such an elimination could result in the issuance of a general or other than honorable discharge, a loss of eligibility for veteran benefits, and could encounter substantial prejudice in civilian life. 19. The applicant was counseled on 20 April 1989 to advise him a bar to reenlistment was initiated. He was advised he will be placed in a non-promotable status. This bar action could have quite an effect on continued service. No favorable actions for 6 months and a review of this bar at the end of 6 months will dictate whether the bar be lifted or remain in effect for an additional 6 months. Unsatisfactory progress at that time could result in a discharge from the service. He may receive an Other Than Honorable Conditions Discharge Certificate. This may result in substantial prejudice when he attempts to obtain civilian employment and may also result in the loss of veterans’ benefits. Both honorable and general discharges entitle him to full federal rights and benefits provided by law. He should not anticipate an automatic upgrading of either type of discharge, as statistics show that relatively few discharges are changed to a more favorable type. He should consider the benefits of receiving an honorable discharge and adjust his behavior accordingly. 20. A DA Form 2166-7 (provided by the applicant) covering the period from June 1988 through April 1989 shows the applicant is lacking in self-control; had an APFT failure; does not display mental and physical readiness; enrolled in remedial PT, no improvement; overweight, soldier is enrolled in the Overweight Program, is not making progress; does not set good example; and displays weak leadership skills. He was rated marginal. His senior rater rated him fair. In reference to the applicant’s contention: a. Part I - Administrative Data * block g (reason for submission) shows: Change of Rater * block l (Rated NCO Copy) shows: Forwarded to NCO 7 June 1989 b. Part II – Authentication * block a (Name of Rater) shows: , MSG, HHB 3rd Battalion, 20th Field Artillery, Operations Sergeant, with signature and dated [30] May 1989 * block b (Name of Senior Rater) shows: , MAJ, HHB 3rd Battalion, 20th Field Artillery, Battalion S-3, with signature and dated [30] May 1989 * block c (Rated NCO) shows: Soldier Refuses to Sign * block d (Name of Reviewer) shows: , LTC, HHB 3rd Battalion, 20th Field Artillery, Battalion Commander, with signature and dated [30] May 1989 21. The applicant’s bar to reenlistment was initiated on DA Form 4126-R (Bar to Reenlistment Certificate) on 5 July 1989. It references the applicant’s NJPs, APFT failure, gain of 13 pounds since enrollment in the Overweight Program, substandard duty performance and personal appearance as reasons for the Bar. It was approved on 2 August 1989. 22. On 10 August 1989, the applicant was counseled concerning his Bar to Reenlistment and to inform him if a second review of this Bar to Reenlistment is required, and he has not overcome the reason of the Bar, he will be discharged in accordance with (IAW) Chapter 16, Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). 23. The applicant was counseled on 2 October 1989 concerning the following deficiencies in job performance and/or military behavior: unsatisfactory performance, overweight program failure, APFT failure, and assault. He was again advised if his unsatisfactory performance and/or misconduct continues he may be separated from the Army. 24. A memorandum, subjected: Review of Bar to Reenlistment, dated 19 April 1990, shows the applicant had not overcome the infractions for which the Bar to Reenlistment was imposed and therefore the Bar will not be removed. 25. A memorandum, subjected: Statement of Voluntary Separation, dated 17 May 1990, showing the applicant requested separation before his normal expiration of term of service (ETS) and understood if approved it will be for his own convenience. If separated he also understood any unearned portion of an enlistment bonus will be recouped and once separated, he will not be permitted to reenlisted at a later date. 26. A DA Form 4187 (Personnel Action), dated 14 June 1990, shows the applicant requested discharge under paragraph 16-5, Chapter 16, AR 635-200. He again acknowledged the consequences of his request. 27. A memorandum, subjected: Separation Physical Waiver, dated 14 June 1990, shows the applicant’s medical records were reviewed and determined a medical examination is not required prior to separation from service. 28. The applicant’s discharge was approved with an honorable character of service. Orders 177-99, dated 26 June 1990, show the applicant was reassigned from Germany to Fort Jackson, SC for transition processing. His PQR shows he was enroute to the Continental United States (CONUS) on 30 July 1990. 29. A DA Form 2166-7 covering the period from May 1990 through July 1990 shows the applicant was enrolled in the overweight program and is making process. He was rated marginal. His senior rater rated him fair. In reference to the applicant’s contention, the following is provided for comparison: a. Part I - Administrative Data * block g (reason for submission) shows: Change of Rater * block l (Rated NCO Copy) shows: Forwarded to NCO 7 August 1990 b. Part II – Authentication * block a (Name of Rater) shows: , 1SG, Service Battery, 3rd Battalion, Field Artillery, First Sergeant, with signature and dated 1 August 1990 * block b (Name of Senior Rater) shows: , 1LT, Service Battery, 3rd Battalion, Field Artillery, Platoon Leader, with signature and dated 1 August 1990 * block c (Rated NCO) shows: Soldier is unavailable for signature * block d (Name of Reviewer) shows: , CPT, Service Battery, 3rd Battalion, Field Artillery, Battery Commander, with signature and dated 2 August 1990 30. The applicant underwent a medical examination on 6 August 1990. His SF 93 shows the following: a. Since last year, in September 1989, the applicant had noticed his right foot having some pains while walking due to a growing bunion which is interfering with his normal walking. He also had an injury in 1982 which prevents the full extension of his elbow, sometimes he feels pain in this elbow. At this moment, he would like an evaluation of his heart due to small pain during the past two days. During his military career he had worked with radioactive materials and all types of chemicals including Agent Orange. He would like a full examination due to stated problems. b. He reported a history of the following: * coughed up blood * bled excessively after injury or tooth extractions * swollen or painful joints * frequent or severe headaches * eye trouble * ear, nose, or throat trouble * chronic or request colds * sinusitis * hay fever * skin diseases * cramps in his legs * frequent indigestion * broken bones * recent gain or loss of weight * bone, joint or other deformity * painful or trick shoulder or elbow * foot trouble * depression or excessive worry 31. The applicant’s corresponding SF 88 shows his left elbow has almost full extension, he has a large, tender bunion on his right foot, and hyperpigmented splotches on his lower legs. He was found qualified for separation and assigned a physical profile of 111111. 32. The applicant was honorably discharged on 10 August 1990 under the provisions of AR 635-200 paragraph 16-5b for locally imposed bar to reenlist. His DD Form 214 shows he completed 11 years, 10 months, and 15 days net active service this period. He was assigned the separation code KGF and reentry code RE-3. 33. In processing the applicant’s prior case, a review of the applicant’s medical records was conducted by the Agency’s medical advisor. They provided the following pertinent information: a. Review of his medical records show he was seen for a variety of minor health issues; cough, rashes, left ankle sprain, tonsillitis, headache, and possible exposure to agent orange. In October 1982, he was seen by orthopedics for a 2-month history of left elbow pain following a fall. Other than a “minimal loss of extension (10 degrees)” the exam was unremarkable. Radiographs of his left elbow obtained on 21 October 1982 were read as normal. The provider noted “No specific treatment indicated,” referred him to physical therapy, and placed him on a no push / no pull-up temporary profile. b. In 1985, the applicant was medically screened as part of the weight control program (5’9”, 215 pounds, max weight allowed 185 pounds) A weight control log shows that he weighed 187 pounds on 2 August 1988 and 207 pounds on 10 April 1989. c. On 2 August 1988, a flag was initiated for exceeding the body fat standard. A second flag was initiated on 27 January 1989 for failure of the Army Physical Fitness Test (APFT). d. In August 1990, just prior to his discharge, he was seen for symmetrical hair loss and right sided hallux valgus (“bunion”). e. His pre-separation Report of Medical Examination completed on 6 August 1990, contained three diagnosed conditions; “left elbow pain, bunion right foot, dermatitis lower legs.” The provider determined he was qualified for a chapter 16 discharge. g. There is no evidence the applicant had any other medical condition would have then contributed to his multiple shortcomings and UCMJ violations; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his voluntary separation. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. h. It is the opinion of the Agency medical advisor that neither a lifting of the bar to reenlistment nor a referral of his case to the Disability Evaluation System (DES) is warranted. 34. The applicant provided the following pertinent documents not previously considered: a. VA service-connected disabilities letter, dated 1 November 2019, showing a combined rating of 30 percent for the service-connected conditions of dermatitis (10 percent), residuals hemarthrosis left elbow (10 percent), and right hallux valgus (10 percent). b. A statement from Social Security Administration showing he is in receipt of payments. The statement is in Spanish and a translation was not provided. 35. Based on the applicant's contention the Army Review Boards Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 36. Army Regulation 15-185 (Army Board for Correction of Military Records) 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. 37. 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. 38. 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. 39. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. 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 his 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. 40. 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 has applied to the ABCMR requesting reconsideration of their denial of his requests for the removal of a locally imposed bar to reenlistment and, in essence, a referral to the Disability Evaluation System (DES). He states in part: “My new evidence includes information of a legitimate confidential statement of 7 pages that tell the events of my PCS [permanent change of station] movement to Germany, back on SEP 1987. I'm including also an NCO Evaluation Report that was generated illegally by ex-commanders and NCO's of my last unit. They got together to jeopardized my military career from the military service. I was receiving too much harassment and persecutions from 1SG M. I was intimidated by both Commanders to sign that NCO's Evaluation Report; but I had refused to sign completely. My deformities in both feet weren't operated completely prior entering the military service back on JUN 15, 1978. It wasn't operated neither after the Running PT accident back on DEC 05, 1989. It wasn't operated neither during the Transition Point at FT. Jackson, South Carolina. Unfortunately, I had reported a complaint against VA/ DOD under Title 18 USC, Sec 248 FACE ACT to the Department of Justice and other Federal Agencies. I'm requesting a correction of my DD Form 214 with a completely medical discharge from the military service back on AUG 10, 1990. I'm receiving at this moment my retirement benefits completely at age 62.” c. On his DD Form 149, the applicant indicates that PTSD, other mental health issues, and harassment are issues/conditions related to this request. d. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army on 26 September 1978 and received an honorable discharge on 10 August 1990 under the separation authority provided by paragraph 16-5b of AR 635-200, Personnel Separations – Enlisted Personnel (26 May 1989): The applicant requested a voluntary separation before the end of his term of service because of his perception that he would not be able to overcome a local bar to reenlistment. e. This request was previously denied in full on by the ABCMR on 3 August 2021 (AR20190002003). Rather than repeat their findings here, the board is referred to the record of proceedings and medical advisory opinion for that case. This review will concentrate on the new evidence submitted by the applicant. f. No new medical or otherwise probative evidence was submitted with this application. g. Because of the period of service, there are no encounters in AHLTA or documents in iPERMS. h. JLV shows the applicant to have several VA service-connected disability ratings, none of which are for a behavioral health condition. There are no mental health conditions listed on his medical problem list. i. There continues to be no evidence the applicant had any other medical condition would have then contributed to his multiple shortcomings and UCMJ violations; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his voluntary separation. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. j. It is the opinion of the Agency medical advisor that both a lifting of the bar to reenlistment and a referral of his case to the DES remain unwarranted. 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 the medical review, the Board concurred with the advising official finding that both a lifting of the bar to reenlistment and a referral of his case to the DES remain unwarranted. The Board noted, the opine found no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. 2. The Board agreed there is insufficient evidence that would support the removal of the bar to reenlistment based on the applicant’s NJPs, APFT failure, gain of 13 pounds since enrollment in the Overweight Program, substandard duty performance and personal appearance. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting his requested contentions. Therefore, the Board denied relief. 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. 4. The Board noted that 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 : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 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 to amend the decision of the ABCMR set forth in Docket Number AR20190002003 on 3 August 2021. 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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets policies standards and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. Paragraph 16-5b provides for discharge of Soldiers before ETS by commanders when they have received a locally imposed bar to reenlistment who perceive that they will be unable to overcome a locally imposed bar to reenlistment. 2. AR 601-280 (Personnel Procurement – Army Reenlistment Program), in effect at the time, prescribes the eligibility criteria and options currently available in the Army Reenlistment Program. For those persons serving in the Active Army, it outlines procedures for immediate reenlistment or extension of enlistment. Chapter 6 (Bar to Reenlistment Procedures) prescribes procedures to deny reenlistment to soldiers whose immediate separation under administrative procedures is not warranted, but whose reentry into, or service beyond ETS with, the Active Army is not in the best interest of the military service. Policies and procedures prescribed herein apply to the field commander's bars to reenlistment. Soldiers may not be reenlisted without the recommendation of the unit commander. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. 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 UOTHC 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. 5. 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. 6. 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. 7. 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 is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 8. Title 38 USC, section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 9. Title 38 USC, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 10. AR 635-40 (Physical Evaluation for Retention, Retirement, 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. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). a. Paragraph 3-2 states 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. Paragraph 3-4 states 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. 11. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 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. Section 1556 of Title 10, USC, 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 600-8-104 (Army Military Human Resource Records (AMHRR) Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Paragraph 3-6 provides that once a document is properly filed in the OMPF, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. Appendix B (Documents Required for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System) of AR 600-8-104 and the U.S. Army Human Resources Command website provide a listing of documents authorized for filing in iPERMS. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230004071 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1