IN THE CASE OF: BOARD DATE: 9 February 2021 DOCKET NUMBER: AR20190002536 APPLICANT REQUESTS: through military counsel - a. correction of his record to: * modify his discharge orders, dated 8 June 2018 to reflect he was medically retired with 100% (percent) disability retroactive to 15 June 2018, or * show in the alternative, the revocation of his discharge orders, dated 8 June 2018 and that he be processed through the Integrated Disability Evaluation System (IDES) within 30 days with retroactive pay and time in service to 15 June 2018 b. a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: were rendered through a packet by his military civilian counsel with a 5-page memorandum, a 4-page memorandum, and numerous documents, tabbed and organized in enclosures as follows: * DD Form 149 (Application for Correction of Military Record) * Counsel 5-page memorandum, subject: Memorandum in Support of (Applicant's) Application for Correction of Military Record (DD Form 149), dated 7 March 2019 * Counsel 4-page memorandum, subject: Declaration of (Military Counsel) in Support of (Applicant's) Application for Correction of Military Record (DD Form 149), dated 7 March 2019 * Enclosure 1 - Memorandum, subject: Notification of Separation Proceedings under Army Regulation 135-178 (Enlisted Administrative Separations), Chapter 12 - Unsatisfactory Participation (Applicant), dated 1 February 2018 * Enclosure 2 - Email from counsel, dated 16 March 2018 * Enclosure 3 - Email from counsel, dated 19 March 2018 and Election of Rights - Notification of Separation Proceedings, dated on or about 18 March 2018 * Enclosure 4 - Multiple emails from counsel to chain of command and legal representatives * Enclosure 5 - Department of Veterans Affairs (VA) Rating Decision document, dated 28 March 2018 * Enclosure 6 - VA letter, dated 10 April 2018 * Enclosure 7 - Emails from counsel to chain of command and legal representatives * Enclosure 8 - Email from counsel to applicant, dated 31 May 2018 * Enclosure 9 - Multiple emails from counsel to legal representatives * Enclosure 10 - Emails from counsel to legal representatives, dated 10 August 2018 * Enclosure 11 - Orders 18-159-00042, issued by Headquarters, 99th Readiness Division (United States Army Reserve (USAR)), dated 8 June 2018 * Enclosure 12 - Memorandum, subject: Erroneous Discharge of (Applicant), dated 3 October 2018 with two attachments * Enclosure 13 - Email to counsel, dated 13 December 2018 * Enclosure 14 - Email, dated 24 January 2019 and Memorandum, subject: Erroneous Discharge of (Applicant), dated 23 January 2019 * Enclosure 15 - Email from U.S. Army Human Resources Command (AHRC) legal representative, dated 4 February 2019 * Enclosure 16 - Memorandum from Office of the Under Secretary of Defense, subject: Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, dated 25 August 2017 FACTS: 1. The applicant defers all statements to military counsel. 2. Counsel, in a five-page memorandum, dated 7 March 2019, states, in effect, (see attached): a. Preliminary Statement. (1) The applicant is a combat medic with more than 15 years of service, four deployments, and a 100% VA disability rating for post-traumatic stress disorder (PTSD). On 15 June 2018, he was discharged from the Army Reserve under Army Regulation 135-178 (Enlisted Administrative Separations), in plain disregard of his right to an administrative separation board under that regulation and notwithstanding the Command's agreement to suspend separation proceedings pending evaluation of the Soldier for a medical retirement under the IDES. (2) The Command does not dispute that it erroneously discharged him. It contends only that it lacks authority to correct the error and invites the Board to act. The Command's error, however, has already delayed his medical retirement by many months, and its insistence on shifting responsibility to this Board will delay his access to medical retirement pay and benefits longer still. The applicant has exhausted all administrative remedies available to him. (3) In the interest of justice and to avoid further delay, the Board should amend his discharge order to reflect a medical retirement with 100% disability, retroactive to 15 June 2018. In the alternative, the Board should revoke the discharge order with instructions to provide an IDES evaluation within 30 days and retroactive pay and time in service to 15 June 2018. b. Factual Background. (1) On 14 March 2018, Army Reserve trial defense counsel was detailed to advise the Soldier in connection with a Notification of Separation Proceedings under Army Regulation 135-178, Chapter 12 - Unsatisfactory Participation. Shortly thereafter, counsel advised his commander, , of the assignment and requested an extension to 30 March 2018 to submit his election of rights (see enclosure 2). (2) On 19 March 2018, counsel for the applicant submitted the Soldier's signed election of rights to. In his election of rights, the applicant invoked, among other things, his right to a hearing before an administrative separation board (see enclosure 3). (3) On 20 March 2018, the Brigade Judge Advocate, acknowledged receipt of the election of rights and advised "there is no need for the extension request" (see enclosure 4). (4) On or around 28 March 2018, the VA assigned him a 100% disability rating for service-connected PTSD with persistent depressive disorder. In its rating decision, the VA found he suffers from 22 PTSD-related issues including "suicidal ideation," "disorientation to time," and "persistent delusions" (see enclosure 5). In a subsequent letter dated 10 April 2018, the VA confirmed that he is "totally and permanently disabled due solely to his service-connected disabilities" (see enclosure 6). (5) On or around 14 May 2018, counsel for the applicant informed of the applicant's 100% VA disability rating for PTSD. In light of the his disability, counsel for him requested that he be referred to the IDES for potential medical retirement and that separation proceedings be suspended in accordance with Army Regulation 135-178, paragraph 1-10. On or around 24 May 2018, advised that the Command agreed to suspend his separation proceedings pending his referral to the IDES and would excuse further absences by him so long as he was taking reasonable steps to pursue a medical retirement (see enclosure 8). (6) On 7 August 2018, Chief, Army Reserve Medical Management Center (ARMMC), advised that the applicant could not be entered into the IDES because his status was "CURORG Y," meaning he was no longer in the Army Reserve (see enclosure 9). Counsel for the applicant notified who discovered that he had apparently been discharged from the Army Reserve in error. Counsel for the applicant immediately requested the discharge order be revoked. (7) On 3 October 2018, the applicant manually searched for and retrieved a copy of the discharge order through the Army Records Portal. The discharge order is dated 8 June 2018, effective 15 June 2018, and states "Authority: Army Regulation 135-178" (see enclosure 11). The applicant did not receive a copy of the discharge order before 3 October 2018. He did not receive any notice of the putative discharge before 9 August 2018, when the ARMMC discovered the "CURORG Y" code. Additionally, a separation board was not held before discharge order were issued on 8 June 2018, or at any other time. (8). On 3 October 2018, counsel for the applicant submitted a memorandum to . formally requesting that the discharge order be revoked (see enclosure 12). On 13 December 2018, USARC denied the request principally because "a discharge order cannot be changed or revoked past the date of discharge unless the Army Reserve is directed by the Army Review Boards Agency (ARBA)" (see enclosure 13). (9) On 24 January 2019, counsel for the applicant requested the Office of the Command Judge Advocate, AHRC, review the case (enclosure 14). On 4 February 2019, that office advised that AHRC could not revoke the discharge order because it was issued by the 99th Readiness Division under authority of USARC and, furthermore, that "the 99th and USARC do not believe they have the authority to revoke the discharge order without direction from ARBA" (see enclosure 15). c. Standard of Review. (1) This Board provides "liberal consideration" to "Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD." The liberal consideration standard applies not only to upgrades of the characterization of service, but to "any petition seeking discharge relief" (see enclosure 16). (2) Because he requests discharge relief based, among other reasons, on the Command's failure to provide a medical retirement review - despite the Soldier's 100% VA disability rating for service-connected PTSD - liberal consideration is required in this case. d. Argument. (1) The discharge order dated 8 June 2018 is erroneous and unjust because it deprived the applicant of his rights to (a) an administrative separation board under Army Regulation 135-78, para. 3-5(a)(7) and (b) IDES review pursuant to Army Regulation 135-178, para. 1-10 and by express agreement of the Command. a. Army Regulation 135-78, paragraph 3-5(a)(7) provides a Soldier the "right to request an administrative board" if the Soldier has "6 or more years of total active and reserve military service on the date of initiation of recommendation for separation." At the time of the Notification of Separation Proceedings under Army Regulation 135-178, the applicant had more than 15 years of service. On 19 March 2018, four days after counsel was assigned, he invoked his right to an administrative board, and that request was acknowledged by the Command on 20 March 2018. Because no administrative board was held, the discharge order dated 8 June 2018 was unlawfully issued and, accordingly, erroneous and unjust. (b) Army Regulation 135-178, paragraph 1-10 provides that "processing under the IDES takes precedence over administrative action when the MTF commander, attending medical officer, or profiling officer determines that a Soldier has a medical condition that may not meet the medical fitness standards for retention of Army Regulation 40-501 [Standards of Medical Fitness]." The applicant has a 100% VA disability rating for PTSD and plainly does not meet medical retention standards. Consistent with the regulation, the Command agreed to suspend separation proceedings pending entry into IDES, but then ignored its agreement and discharged him without notice or process. Because the Command separated him without IDES review, the discharge order dated 8 June 2018 is erroneous and unjust. (2) The Command does not dispute that the discharge order was unlawfully issued. It contends only it lacks the authority to act: "The 99th and USARC do not believe they have the authority to revoke the discharge order without direction from ARBA. The AHRC does not have authority to revoke or order revocation of an USAR discharge order" (see enclosure 15). It therefore falls on this Board to correct the Command's error. (3) If uncorrected, the erroneous and unjust discharge of the applicant would irreparably prejudice him. Prior to his sudden separation, he was entering into the medical retirement process - an outcome virtually certain given his 100% VA disability rating for PTSD. A medical retirement will entitle him to, among other things, retirement pay and full health care benefits. These are benefits he has amply earned and will certainly need after four deployments as a combat medic. Moreover, the harm continues to accrue daily as he has not received retirement pay and benefits, and will not receive those benefits every day the Command's error stands. e. Conclusion. His discharge was issued in violation of his rights to an administrative separate board and a review for medical retirement based upon his documented PTSD. The discharge is therefore erroneous and unjust. 3. Counsel further provides a Declaration for Record memorandum, dated 7 March 2019, which describes his actions as the applicant's detailed counsel starting on 14 March 2018 (see attachment). 4. The applicant enlisted in the Regular Army on 28 October 2002. He completed his initial entry training and was awarded military occupational specialty 68W (Health Care Specialist). He attained the rank/grade of staff sergeant (SSG)/E-6 during his active duty service. 5. A DA Form 4187 (Personnel Action), dated 11 June 2014 shows the applicant requested a voluntary separation with a new separation date to pursue a college degree in the fall of 2014. 6. A DA Form 5691-R (Request for Reserve Component Assignment Orders), dated 17 July 2014 indicated his desire to enlist in the USAR after his active duty period of service. Concurrently, he executed a DD Form 4 (Enlistment/Reenlistment Document - Armed Force of the United States) to enlist in the USAR for a period of 6 years. 7. The applicant was honorably discharged on 29 September 2014 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-16 by reason of to attend civilian school. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows: * he completed 11 years, 11 months, and 2 days of net active service this period * he served in Afghanistan from 20040420 - 20050420; Iraq from 20060816 - 20070928; Afghanistan from 20100512 - 20110414; and Afghanistan from 20120428 - 20121111 * he was transferred to HHC, 55th Sustainment Brigade, Fort Belvoir, VA (a USAR troop program unit) 8. The applicant's record is void of any medical documentation that shows he was determined to be medically unfit or that shows he was referred by his command to the Army PDES (now known as the IDES), prior to his honorable discharge from active duty. 9. The applicant's record contains a separation packet from his USAR troop program unit. a. The applicant's immediate commander, initiated action to separate the applicant from the USAR under the provisions of Army Regulation 135-178, chapter 12, paragraph 13-1, for unsatisfactory participation on 1 February 2018. He cited the reason for his action due to the applicant accruing 35 U's (unexcused absences) in a 12-month period. He recommended he receive an under other than honorable characterization of service. This notification of Separation proceedings states, "You must complete the attached endorsement acknowledging receipt of this memorandum and indicating the election of your rights. A copy of this memorandum with completed endorsement attached, must be delivered to the address shown on this endorsement within (30) days from your receipt of this memorandum." b. The packet also contains an election of rights memorandum, an affidavit of service by mail, dated 12 February 2018, and certified mail receipts, one which shows the documents were delivered and signed for at the address on record for the applicant on 13 February 2018. [Note: Based on the 30 day suspense, the applicant had until 15 March 2018 to provided his response to his command] Also, the election of rights memorandum was unsigned and did not indicate any markings of his elections. c. A memorandum from the Paralegal NCO, 310th Sustainment Command, subject: Notification of Separation Proceedings Failure to Reply, undated indicates the applicant failed to respond to the notification of administrative separation and to file the election of options. It stated the separation would continue to be processed and his lack of response waived his election options as well as his Administrative Separation Board. d. On 7 April 2018, the applicant's immediate commander, recommended he be separated from the USAR under the provisions of Army Regulation 135-178, chapter 12, paragraph 13-1, for unsatisfactory participation on 7 April 2018. He cited the reason for his action due to the applicant accruing 35 U's (unexcused absences) in a 12-month period. He recommended he receive an under honorable (general) characterization of service. e. The applicant's intermediate commander recommended his separation under the provisions of Army Regulation 135-178 for unsatisfactory participation, and noted that all recovery attempts, i.e., certified mail, phone calls, and letters of instructions, were unsuccessful. f. The separation authority, after reviewing all the evidence and supporting documentation, directed his separation with the issuance of an honorable discharge certificate on 9 May 2018. 10. Orders 18-159-00042 issued by Headquarters, 99th Readiness Division (USAR), Joint Base McGuire-Dix-Lakehurst, NJ on 8 June 2018 honorably discharged him from the USAR effective 15 June 2018. 11. The applicant's record does not contain evidence that shows he failed to meet retention criteria in accordance with Army Regulation 40-501 nor any evidence he was diagnosed with having a physical disability. Additionally, his record is void of evidence that would indicate either an MOS Medical Retention Board (MMRB) or a Fitness for Duty Determination Board (FFDDB) considered his fitness for further service prior to his discharge from the USAR. 12. Counsel provides the following documents: a. Enclosure 1, contains his immediate commander's memorandum, subject: Notification of Separation Proceedings under Army Regulation 135-178, chapter 12 - Unsatisfactory Participation, dated 1 February 2018 that informs the applicant of his commander's actions to initiate separation actions against him for accruing 34 U's (unexcused absences) in a 12 month period. b. Enclosure 2 contains an email from counsel to his commander, dated 16 March 2018, stating he was the applicant's counsel and requested until 30 March 2018 to submit the applicant's election of rights. c. Enclosure 3 contains an email from counsel to with the Election of Rights memorandum and signed by the applicant on or about 18 March 2018. In his election of rights, he invoked his right to counsel, his right to obtain documents that will be sent to the separation authority, his right to a hearing before an administrative separation board, and he elected not to submit matters in writing. d. Enclosure 4 contains an email from (Brigade Judge Advocate for the command) to counsel acknowledging receipt of the applicant's election of rights and advised there was no need for the extension request. e. Enclosures 5 and 6 contains a VA Rating Decision, dated 28 March 2018 and a VA Summary of Benefits letter, dated 10 April 2018 stating the applicant was rated at 100% service-connected disability for PTSD with persistent depressive disorder with 22 PTSD related issues. f. Enclosures 7 and 8 contains emails between counsel, and the applicant wherein said the command agreed to excuse the applicant's absences while he pursued a referral to the IDES. g. Enclosure 9 contains an email between counsel and Chief ARMMC, United States Army Reserve Command (USARC), stated the applicant could not be entered into the IDES because his status was being reported as "CURORG Y," meaning he was no longer in the Army Reserve. h. Enclosure 10 contains an email from counsel to informing him of the reported code preventing the applicant from being processed into the IDES. i. Enclosure 11 contains Orders 18-159-00042, dated 8 June 2018 honorably discharging the applicant from the USAR effective 15 June 2018. j. Enclosure 12 contains a memorandum from counsel to Commander, 55th Sustainment Brigade, subject: Erroneous Discharge of (Applicant), dated 3 October 2018 and the rational and requested the discharge orders be revoked. k. Enclosure 13 contains an email from to counsel informing him that the USARC G- 1 had declined to revoke the discharge orders and advised the applicant to seek relief through the ARBA. l. Enclosure 14 contains an email, dated 24 January 2019, the lawyer from USAR Legal Command petitioned AHRC Judge Advocate to review the applicant's case. m. Enclosure 15 contains an email, dated 4 February 2019 from an attorney at AHRC stating AHRC could not revoke the discharge order because it was issued under authority of USARC and did not have the authority to do so. The applicant my request an exception to policy but recommended he seek relief from ARBA. n. Enclosure 16 contains a Memorandum from Office of the Under Secretary of Defense, subject: Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions…., dated 25 August 2017, which requested boards to consider modify veteran discharges in whole or part due to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. 13. The applicant requested a personal appearance hearing. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 14. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) indicates the applicant received behavioral health treatment for Major Depressive Disorder, ADHD, Dysthymia, and PTSD while on active duty. He met retention standards at the time of his discharge from active duty. b. A review of JLV indicates he completed a Compensation and Pension Examination while serving in the Army Reserves and received a service connected disability rating of 100% for PTSD. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health condition during his military service. The applicant did not meet retention standards at the time of his discharge. Recommend his case be referred to the Disability Evaluation System office for their consideration. 15. 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. 16. Army Regulation (AR) 40-501 provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 17. AR 635-40 (Disability 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 or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. 18. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, any disability rating action by the VA does not demonstrate an error or injustice on the Army's part. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service; only the Army can make that determination. The VA may award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, an advisory opinion, and regulatory guidance were carefully considered. Board members noted that retiring the applicant for disability is premature. This is done through medical channels. Board members agreed with the medical reviewer's assessment that the applicant met retention standards at the time of his discharge from active duty. He then completed a Compensation and Pension Examination while serving in the Army Reserves and received a service connected disability rating of 100% for PTSD from the VA. There is documentation to support a behavioral health condition during his military service. The applicant did not meet retention standards at the time of his discharge. Based upon a preponderance of the evidence, the Board determined there is sufficient evidence to refer the applicant's case to the Disability Evaluation System office for their consideration. 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 that the evidence presented was 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 referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Legacy Disability Evaluation System (DES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the DES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that 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 changing his type of discharge without evaluation under the IDES. 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 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 2. 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, under the operational control of the Commander, U.S. AHRC, is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense (DOD) Directive 1332.18 and Army Regulation 635-40. a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board * receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, Human Resources Command c. The PDES assessment process involves two distinct stages: the medical evaluation board (MEB) and the 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 are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are “separated” receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. d. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 4. Army Regulation 635-40 establishes the Army PDES 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 or her office, grade, rank, or rating. It provides that an MEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. 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 service. 5. Directive-Type Memorandum (DTM) 11-015 – Integrated Disability Evaluation, dated 19 December 2011, establishes policy, assigns responsibilities, and prescribes procedures for the IDES, which is superseding the legacy DES. It specifies all newly initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. Under the IDES the PEB applies the VA provided ratings to the service member’s unfitting conditions. 6. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 7. 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 rated at least 30 percent. 8. Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated less than 30 percent. 9. Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements and Enforcement Procedures), defines Army National Guard of the United States (ARNGUS) and USAR service obligations. It prescribes policies and procedures governing the various types of service obligations and participation requirements. It further provides guidance governing absences from Ready Reserve training for enlisted personnel of the ARNGUS and USAR. a. A Soldier becomes an unsatisfactory participant when he has accrued nine or more unexcused absences from scheduled drills during a 1-year period. b. After accruing four unexcused absences in a 1-year period, the unit commander is required to notify the Soldier via a prescribed letter of instructions – unexcused absence. The delivery of this notice will be either in person or by certified mail, restricted delivery, return receipt requested. After each additional unexcused absence in a 1-year period, the Solder will receive a similar letter of instructions. Each of these notices will be filed in the Soldier’s military personnel records. 10. Army Regulation 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of ARNGUS and USAR enlisted Soldiers for a variety of reasons. a. Paragraph 2-9a states an honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 2-9b states that if a Soldier's service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions. Service characterized as general (under honorable conditions) is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record. When authorized, a characterization of under honorable conditions is awarded to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 2-9c states service may be characterized as under other than honorable conditions only when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons. d. Paragraph 1-10 (Precedence of referral to the IDES and administrative separation) states processing under the IDES takes precedence over administrative action when the MTF commander, attending medical officer, or profiling officer determines that a Soldier has a medical condition that may not meet the medical fitness standards for retention of Army Regulation 40-501. e. Chapter 12 states a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because: (1) the Soldier is an unsatisfactory participant as prescribed by Army Regulation 135-91, chapter 4, and (2) attempts to have the Soldier respond or comply with orders or correspondence have resulted in: * the Soldier’s refusal to comply with orders or correspondence * a notice sent by certified mail was refused, unclaimed, or otherwise undeliverable * verification that the Soldier has failed to notify the command of a change of address and reasonable attempts to contact the Soldier have failed * discharge action may be taken when the Soldier cannot be located or is absent in the hands of civil authorities * Commanders will not take action prescribed in this chapter in lieu of disciplinary action solely to spare a Soldier who may have committed serious misconduct the harsher penalties that may be imposed under the UCMJ (3) Characterization of service normally will be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted. (4) For Soldiers who have completed entry level status, characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. In such cases, separation for unsatisfactory participation with an honorable characterization will be approved by the separation authority (para 1–11). As an exception, the separation authority will approve separation with service characterized as honorable when an administrative separation board has recommended such characterization. 11. 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 applicants' service. 12. 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. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190002536 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1