IN THE CASE OF: BOARD DATE: 24 January 2024 DOCKET NUMBER: AR20230006501 APPLICANT REQUESTS: reconsideration of his previous request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 20 November 1997, to show an honorable medical discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * letter, Request for Reconsideration, dated 6 March 2023 * letter, Rebuttal, dated 15 March 2022 * Newspaper article, Public Affairs Office, undated * Memorandum, Secretary of Defense, Chuck Hagel, dated 3 September 2014 * Memorandum, Acting Under Secretary of Defense for Personnel and Readiness, Kurta, dated 24 August 2017 * Medical documents (17 pages), dated 23 January 2018 to 7 September 2018 * letter, U.S. Office of Personnel Management, dated 15 October 2018 * Standard Form (SF) 50 (Notification of Personnel Action), dated 26 October 2018 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 AR20160018954 on 8 May 2020. 2. As a new argument, the applicant states, in effect: a. His stressor happened on active duty and later progressed. The Board failed to provide any explanation as to why a physical evaluation board (PEB) or medical evaluation board (MEB) was not provided to him by the Army. b. The Board stated there are no in-service treatment records at a military treatment facility. He was awarded the Soldiers Medal for heroism while on active duty. Had the Board reviewed his DD Form 214 and Department of Veterans Affairs (VA) rating decision, they would have seen the link between his diagnosis and in-service stressor. c. The Board did not take into consideration any of the liberal guidance in the Kurta and Hagel Memoranda with regard to the modification of his discharge based upon his diagnosis of post-traumatic stress disorder (PTSD) resulting from an in-service stressor. 3. In an additional rebuttal letter, dated 15 March 2022, Dr. . states, in effect: a. The Board stated they reviewed and considered the applicant’s applications and VA documents when considering his previous request. However, he submitted additional documents on 11 February 2011 which were not reviewed or considered, to include: * Advance Psychological Solutions, Psychological Update, dated 11 July 2018 * Certification of Health Care Provider for Employee's Serious Health Condition (Family and Medical Leave Act), signed 20 February 2018 * Advance Psychological Solutions, Neuropsychological Evaluation, dated 23 January 2018 * SF-50, Notification of Personal Action * "Act of heroism" newspaper article * U.S. Office of Personal Management, medical retirement approval letter * The Mental Fitness Group, LLC, Confidential Psychological Report, dated 7 September 2018 b. The Board stated the Veteran did not file within the three-year time frame. However, the Board failed to state how a Veteran is supposed to learn about such a benefit. c. The applicant provided several VA related medical records to support his rationale for why he should have been given a PEB or MEB, due to his service- connected disabilities, before being discharged. d. The Board failed to review the newspaper article submitted by the applicant which shows he received the Soldiers Medal for heroism after having been involved in a traumatic incident where he entered a burning building and saved the lives of two children. Within 2-3 weeks of this incident, he began to experience symptoms of PTSD. e. The Board noted “there were no in-service treatment notes for any medical or behavioral health conditions for review.” The applicant did not seek treatment after the traumatic incident, or at any other time during his service; he was not aware that the physical and psychological symptoms he was experiencing at the time were associated with the traumatic event or that they deemed needing assistance. At the time, little was known about PTSD, and military culture has history of overtly and covertly discouraging Soldiers from seeking mental health counseling. The applicant had no awareness that he possessed a diagnosable mental health condition. Additionally, the Board Medical Advisor did not mention the supporting evidence that was submitted regarding the in- service incident. f. The Board points out “the mere presence of impairment” does not alone “justify a finding of unfitness because of physical disability.” PTSD is not a physical disability but a psychological one, which may not present with any observable physical impairments. g. If the Board had considered the documentation submitted, the evidence would show it should have been the Army’s responsibility to know and consider the applicant could have had a condition which warranted further attention by a qualified mental health professional. The Board is placing the onus on the applicant and is now penalizing him for not knowing what should have been done in-service to document the incident. 4. After an honorable period of enlisted service in the Missouri Army National Guard, the applicant enlisted in the Regular Army on 29 October 1991 for a 4-year period. The highest rank he attained was staff sergeant/E-6. 5. Permanent Orders 35-1 issued by the U.S. Total Army Personnel Command, Alexandria, VA, dated 12 March 1993, shows the applicant was awarded the Soldiers Medal on 11 February 1993 for his act of heroism on 25 April 1992. [The applicant] discovered a fire in the boiler room of his home. After attempting to put out the fire, he evacuated his family. He learned his landlord’s children were still inside the home. Ignoring the intense heat and smoke, he re-entered the building and freed both children who were unharmed. He was hospitalized for smoke inhalation. 6. The applicant reenlisted on 21 November 1995 for a 2-year period. 7. The applicant was honorably discharged on 20 November 1997 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 4, by reason of completion of required active service, with separation code KBK and reentry code RE-1. His DD Form 214 and the corresponding DD Form 215 (Correction to DD Form 214) shows he was credited with 6 years and 22 days of net active service this period. He was awarded or authorized the following: * Soldiers Medal * Army Lapel Button * Army Achievement Medal (2nd award) * Army Good Conduct Medal * National Defense Service Medal * Noncommissioned Officers Professional Development Ribbon with numeral 2 * Army Service Ribbon * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with Rifle bar * Sharpshooter Marksmanship Qualification Badge with Pistol bar * Driver and Mechanic Badge with Driver-W bar 8. The ABCMR reviewed the applicant’s request for an honorable medical discharge on 8 May 2020. Although the applicant did not file within the three year time frame provided in Title 10 U.S. Code (USC), Section 1552(b), the ABCMR determined it was in the interest of justice to excuse the applicant’s failure to timely file. After careful consideration of the applications, supporting documents, military service record, regulatory guidance, and the medical advisory review, the Board agreed there were no in-service treatment notes for any medical or behavioral health condition during the applicant’s period of active-duty service available for review. The Board concluded there was insufficient evidence which would warrant a change in the applicant’s narrative reason for separation. His request was denied by the Board. 9. As new evidence, the applicant provides: a. A newspaper article that shows the applicant being awarded the Soldiers Medal for his heroic actions on 25 April 1992. b. The Kurta and Hagel Memoranda provide clarifying guidance to Military Discharge Review Boards and Boards for the Correction of Military Records on liberal consideration and requests by Veterans for modification of their discharge due to mental health conditions, sexual assault/harassment, post-traumatic stress disorder, and traumatic brain injury. c. 17 pages of medical documentation, dated from 23 January 2018 to 7 September 2018, show the applicant was diagnosed with (PTSD) and major depressive disorder to a degree which prevented him from being able to perform the essential duties of any job, resulting in total disability. He was advised to apply for retirement disability and Social Security disability. d. A letter from the U.S. Office of Personnel Management, dated 15 October 2018 and an SF 50, dated 26 October 2018, show the applicant received a disability retirement from his civilian job as a Veterans Service Representative due to PTSD and major depressive disorder. 10. On 11 April 2023, the Army Review Boards Agency Security Manager reviewed the applicant’s supporting evidence marked CONFIDENTIAL. It was determined, beyond a reasonable doubt, that the CONFIDENTIAL markings were for privacy reasons. The marked documents are medical records which do not appear to contain classified information. Care should be taken to ensure the supporting documents are disclosed to only those individuals authorized to view them. 11. 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. 12. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. 13. MEDICAL REVIEW: a. Request: The applicant his requesting reconsideration of his previous request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 20 November 1997, to show an honorable medical discharge. b. 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: * After an honorable period of enlisted service in the Missouri Army National Guard, the applicant enlisted in the Regular Army on 29 October 1991 and reenlisted on 21 November 1995. * Applicant was awarded the Soldiers Medal on 11 February 1993 for his act of heroism on 25 April 1992. [The applicant] discovered a fire in the boiler room of his home. After attempting to put out the fire, he evacuated his family. He learned his landlord’s children were still inside the home. Ignoring the intense heat and smoke, he re-entered the building and freed both children who were unharmed. He was hospitalized for smoke inhalation.] * Applicant was honorably discharged on 20 November 1997 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 4, by reason of completion of required active service, with separation code KBK and reentry code RE-1. * The ABCMR reviewed the applicant’s request for an honorable medical discharge on 8 May 2020. His request was denied by the Board. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 293, NGB Form 22, VA summary of benefits letter, medical records, statements in support of claim, and ABCMR Record of Proceedings (ROP). 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. d. The applicant’s electronic medical record is void of any documentation. Overall, the applicant’s available service record does not show he was issued a permanent physical profile rating or was treated for a behavioral health condition. The applicant successfully completed his military enlistment contract without any performance issues that would have disqualified him from military service. An NCO Evaluation Report dated 01 October 1997, describes him as “exceptionally competent” and “possesses all attributes required to excel in any task”. The applicant obtained excellent ratings in all areas of performance and no concerns or limitations were identified. A Service School Academic Evaluation Report, dated 28 March 1997, further documents the applicant successfully achieved course standards with strong demonstrated abilities. There is no indication in his record of any condition affecting his ability to perform his duties, that failed retention standards, or that rendered him unfit for military service. e. The VA electronic record indicates the applicant is currently 100% service connected for PTSD. A C and P Examination dated 23 August 2010 diagnosed him with PTSD and detailed his incident of heroism as the stressor event. Per the VA electronic record, the applicant has limited engagement with behavioral health services. The applicant has been recommended for the Trauma Recovery Program and assigned a Polytrauma Network social worker but has not engaged in treatment services. f. 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 100% service connected for PTSD, 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 PTSD through the VA is not indicative of an injustice at the time of service. Furthermore, even an in-service diagnosis of PTSD 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 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, 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 there is insufficient evidence to support a referral to the IDES process at this time. The opine noted there is no indication in his record of any condition affecting his ability to perform his duties, that failed retention standards, or that rendered him unfit for military service. The Board determined a VA disability rating would not imply failure to meet Army retention standards at the time of service. A subsequent diagnosis of PTSD through the VA is not indicative of an injustice at the of the applicant’s time of service. 2. However, during deliberation, the Board the applicant's service record did not reflect he was awarded the Army Good Conduct Medal (2nd Award) and his record shows he received "excellent" conduct and efficiency ratings throughout his service for the period of 21 November 1995 to 20 November 1995. Additionally, the Board agreed the applicant should be awarded the Army Reservice Components Achievement Medal for his 4 years of honorable reserve component time. Based on this, the Board granted partial relief to correct the applicant’s DD Form 214 to show award of his Army Good Conduct Medal and the Army Reserve Components Achievement Medal. 3. The Board agreed the VA applies its own polices and regulations to make service connection and rating determinations. It is not bound by determinations made by the Army. With that, unlike the VA, the Army’s determination of fitness and its mandatory application of VA ratings is a snapshot in time whereas the VA can make service connection and rating determinations throughout the veteran’s life. The VA provides post-service support and benefits for service-connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service-connected disabilities. 4. 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. 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 amending the applicant’s DD form 214 for the period ending 20 November 1997 by awarding him the Army Good Conduct Medal (2nd Award) for exemplary service from 21 November 1995 to 20 November 1995 and award the Army Reserve Components Achievement Medal. 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 show an honorable medical discharge. 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. 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. 2. 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 percent (%). 3. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. a. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. b. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform 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. 4. Army Regulation 40-501 (Standards of Medical Fitness) 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 physical evaluation board (PEB) rates all disabilities using the Veterans Affairs Schedule for Rating Disabilities (VASRD). a. Chapter 2, provides physical standards for enlistment, appointment, and induction with the purpose to ensure members medically qualified are medically capable of completing required to training, adapt to a military environment without geographical limitations, perform duties without aggravation of existing physical defects or medical conditions. b. The standards in Chapter 2 are applicable to individuals who enlist in the Regular Army - for medical conditions or physical defects pre-dating original enlistment, standards are applicable for enlistee's first 6 months of active duty. It states that enlisted Soldiers identified within the first 6 months of active duty with a condition that existed prior to service that does not meet the physical standards may be separated following an evaluation by an Entrance Physical Standards Board, under the provisions of Army Regulation 635-200, Chapter 5; for Reserve Component and ARNG/ARNGUS members, these standards are applicant during the enlistee's first period of active duty for training (ADT). 5. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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: a. 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. b. The PEB-appointed counsel advises the Soldier of the Informal PEB (IPEB) findings and recommendations and ensures the Soldier knows and understands his or her rights. The Soldier records his or her election to the PEB on the DA Form 199 and has 10 calendar days from the date of receiving the PEB determination to make the election, submit a rebuttal, or request an extension. 6. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 4 of that regulation provides, in pertinent part, a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. b. Paragraph 3-7a provides that 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. 7. 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 and Boards for Correction of Military/Naval Records (BCM/NR) 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. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. 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. 8. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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) AR20230006501 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1