IN THE CASE OF: BOARD DATE: 19 November 2021 DOCKET NUMBER: AR20200009420 APPLICANT REQUESTS: physical disability retirement APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) disability rating letter FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he should receive a medical retirement considering he was granted 80 percent disability. Before he was discharged his rating was significantly lower but it is now 80 percent. 3. The applicant enlisted in the United States Army Reserve on 20 February 2014 for a period of 8 years in the delayed entry program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 5 years on 20 May 2014. He was awarded the military occupational specialty (MOS) 12M (firefighter) on 3 December 2014, and he was transferred to Joint Base Lewis-McChord (JBLM), WA effective 12 January 2015. 4. The applicant completed a DD Form 2807-1 Report of Medical History on 25 February 2016. He indicated yes to the following: * recurrent back pain or any back problem * foot trouble (e.g. pain, corns, bunions, etc.) * currently in good health * frequent trouble sleeping * received counseling of any type * depression or excessive worry * have you ever been treated in an emergency room 5. The applicant underwent a physical examination on 7 March 2016. A DD Form 2808 (Report of Medical Exam) shows he had a temporary profile for his right ankle pain due to expire on 15 March 2016. No other significate defects were noted. 6. A DA Form 3288 (Report of Mental Status Evaluation) shows the applicant underwent an exam on 8 March 2016 for clearance for administrative separation under AR 635-200, chapter 14. He was found fit for full duty, including deployment. It was determined he could understand and participate in administrative proceedings, appreciate the difference between right and wrong, and meets medical retention requirements. It was noted he was experiencing problem in relationship with spouse or intimate partner. He had been screened for posttraumatic stress disorder (PTSD) and traumatic brain injury (TBI). He screened positive for PTSD and was referred for a comprehensive PTSD evaluation. He screened negative for TBI. 7. On 22 March 2016, the applicant was notified separation action was being initiated under AR 635-200, Chapter 14-12c, for the commission of a serious offense. Specifically, on or about 25 October 2014, he unlawfully struck multiple times in the face and sides with a closed fist and unlawfully scratched her on her chest. His character of service was recommended to be general, under honorable conditions. He was advised of his right to consult with counsel, to submit written statements on his behalf, to obtain copies of documents, and to waive his rights in writing, and he may withdraw such waiver prior to the date of separation. He had been counseled on education benefits, recoupment of the unearned portion of his enlistment bonus (if applicable), and that he had undergone a complete medical examination and mental status evaluation. 8. The applicant acknowledged receipt of separation notice on 22 March 2016. He acknowledged: * his understanding of the basis for the contemplated action to separate him under AR 635-200, Chapter 14-12c and of the rights available to him * he had been advised of his right to consult with counsel prior to submitting his election of rights * his understanding that unless an extension is granted, failure to respond within 7 duty days would constitute a waiver of the rights in paragraphs 6, 7, 8 and 9 of the notice. 9. After consulting with counsel on 23 March 2016, the applicant indicated he was not entitled to consideration of his case by an administrative separation board. He elected not so submit statements on his own behalf. He acknowledged he may expect to encounter substantial prejudice in civilian life, that he may withdraw his waiver of rights. He indicated he had not filed an unrestricted report of sexual assault within the last 24 months. 10. The applicant’s separation was approved on 1 April 2016, under the provisions of AR 635-200, chapter 14-12c, commission of a serious offense. His character of service was directed to be general, under honorable conditions. 11. The applicant was discharged on 21 April 2016. He was credited 1 year 11 months 2 days net active service. His service was characterized as general, under honorable conditions. His separation code is JKQ and reentry code a 3. The narrative reason states misconduct (serious offense). 12. The applicant provides his VA decision letter dated 24 July 2020. It shows his combined rating evaluation is 80 percent effective 6 May 2020. 13. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 14. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 15. 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. 16. 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. 17. 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. 18. MEDICAL REVIEW: a. Applicant is applying to the ABCMR requesting in effect, an upgrade of his Under Other Than Honorable Conditions discharge to an Honorable physical disability discharge. He indicates on his DD Form 149 the condition Post-Traumatic Stress Disorder (PTSD) is related to his request. The Army Review Boards Agency (ARBA) Psychologist reviewed this case. Documentation reviewed included the applicant’s completed DD 149 and supporting documents, his ABCMR Record of Proceedings (ROP), his separation military documentation, and the VA medical record (JLV). b. The ABCMR ROP outlines the details and circumstances of the applicant’s military history. He enlisted in the Regular Army on 24 October 1972 and was discharged on 30 September 1974 under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. His service was characterized as Under Other Than Honorable Conditions. The court-martial charges were AWOL from 4 June 1973 to 18 September 1973 and 1 October 1973 to 6 August 1974. c. Due to the period of service, no active duty electronic medical records (AHLTA) were available for review and no hard copy medical documentation from the time of service was submitted for review. Applicant submitted medical records from Kaiser Permanente dated 6 September 2018 to 29 October 2018 that includes an Adult Behavioral Health Intake and progress notes from two individual therapy sessions. The intake evaluation was conducted 6 September 2018 and diagnoses applicant with Post- Traumatic Stress Disorder (PTSD), Adjustment Disorder with Anxiety, and Major Depressive Disorder. The evaluation indicates that applicant’s PTSD was diagnosed based on childhood abuse and traumas in adulthood that are not military-related. There is no mention of any trauma related to applicant’s military service. d. Applicant is not service connected and record indicates that he is ineligible for VA services. He made a call to the VA National Suicide Prevention Hotline in June 2021. He reported suicidal ideation and was provided community resources due to his ineligibility for services. e. After review of all available documentation, there is insufficient evidence to support that applicant had a boardable behavioral health condition at the time of military service. Therefore, his request for referral to the military disability evaluation system is not supported. f. Regarding his request for a discharge upgrade, there is evidence that applicant was diagnosed with PTSD in 2018, which was 44 years post-discharge. However, applicant’s diagnosis was based on childhood abuse and traumas unrelated to his military service. There is also no indication that his PTSD was present at the time of service or related to his military service. Accordingly, his request for a discharge upgrade is not supported. BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records, and regulatory guidance. The Board considered the applicant's statement, the medical records, and the review and conclusions of the medical reviewing official. Based upon a preponderance of the evidence, the Board concurred with the medical reviewer’s finding of insufficient evidence the contested medical conditions failed to meet retention standards during his period of service. Therefore, the Board determined referral to DES for consideration of a medical separation is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 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 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. 3. Title 38 U.S. Code, 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. 4. Title 38 U.S. Code, 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. 5. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 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. 6. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. a. 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. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 14-12c (Commission of a serious offense) states soldiers are subject to separation action per this section for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the MCM. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200009420 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1