ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 August 2021 DOCKET NUMBER: AR20210006768 APPLICANT REQUESTS: in effect, . reconsideration of his prior request to upgrade his character of service from general to honorable . as a new request: he requests a physical disability retirement with back pay APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . supplemental statement . copy of ABCMR case AR2001065659 . Department of Veterans Affairs (VA) entitlement decision . Social Security Administration (SSA) entitlement decision . VA Rating Decision 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 AR2001065659 on 11 April 2002. 2. Counsel states this petition is brought under the 2017 Hagel Memo permitting application of liberal evidence principles for misconduct discharges involving undiagnosed and untreated posttraumatic stress disorder (PTSD) and traumatic brain injury (TBI) presently rated and treated by the VA. The applicant seeks to set aside and upgrade his general discharge, seeks disability retirement caused as unfit at the time. Counsel provides a supplemental statement: a. The applicant requests his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD); that the narrative reason for his separation be changed to disability retirement at an appropriate rating for TBI and PTSD; back pay awarded. b. This appeal is submitted under the 2017 Hagel Memorandum, Clarifying Guidance to Military Correction of Military Records Considering Requests by Veterans for Modification of their Discharge Due to Health Conditions [hereafter "Hagel Memo" or "liberal evidence rules"]. The Hagel Memo directs the BCMRs to liberally waive any statute of limitations issues from previous BCMR decision. As such the BCMR should waive time to the extent that this case reflects a reconsideration of AR2001065659 (11 April 2002). Additionally, BCMR should also consider waiver favorable because applicant submits new evidence of VA ratings of PTSD and TBI in 2011 that mitigate his 1984 discharge. These VA ratings were not available no previously submitted to the BCMR or any other forum. c. On 18 November 1982, he entered the Army for a period of 3 years. He successfully completed training and was awarded military occupational specialty (MOS) 11 B (Infantryman). d. In May 1983 completing basic training with the wallet full of pay, he was robbed and struck in the head and incurring the with what the VA later determines a TBI. Then again August 1983 applicant was subject to another criminal assault, both these incidences rely on treatment records, with one including one investigated by the CID. This was the second TBI which he lost consciousness and spent a week in the hospital. e. After these two TBIs applicant "became surly, started drinking, had sleep problems, in shortly thereafter became angry at his Sgt" [then after the second TBl of August 1983] yelled at another Sgt." The anger, change in mood, general irritability, along with insomnia cognitive impairment in executive function, are typical of post concussive symptoms. This can lead to the second medical condition called persistent postings concussive syndrome (PCS). These are basic TBI residuals that can last for several months, or become permanent. f. On October 15, 2020, applicant after drinking got into an altercation leading to a fight and he was "kicked in the head." This was his third TBI. He was now a high risk for permanent TBI residuals, or persistent PCS while in the Army. It appears they did become permanent as documented in 2009 VA granting 50 percent for TBI residuals primarily for headaches and cognitive impairments, the latter described as impairments in memory, attention, concentration, executive function, headaches insomnia). g. In addition, the VA granted 70 percent disability for PTSD arising from the two criminal assaults in 1983. The VA in 2009 believed applicant was not treated or diagnosed with PTSD in 1983, however that does not mean he had NO symptoms of PTSD. In the early 1980s PTSD science was very immature while it is recognized now, with after many veterans returning from Iraq or Afghanistan, that symptoms of PTSD can overlap (and often arise) with TBI post concussive syndrome such as nightmares, anger, insomnia. In 2010 Dr. P_ opined applicant was suffering from PTSD at the time he left the Army in 1984. h. This raises the second point that PTSD and PCS often interact with each other, coevolve, making them worse. This PTSD -PCS condition must be considered under the Hagel Memo's liberal evidence principles ---whether they reasonably caused or substantially contributed to subsequent disciplinary problems, and the ultimate discharge six months later. i. After his two TBIs and he experiencing post concussive symptoms, and perhaps mild overlapping PTSD symptoms, he communicated a threat to a NCO on 30 September 1983. On 13 October the NJP was imposed, reduction to E1, forfeiture of pay, restriction 14 days, extra duty 14 days. This offense is consistent with symptoms of post concussive symptoms, and PTSD -alcohol or substance abuse, irritability, temper, anger, impaired cognition affecting judgment. As noted above, on 15 October he had this third TBI. Science studies of OIF and OEF veterans, show that the trajectory of soldiers with untreated TBI or post concussive symptoms with PTSD “would be expected to impact psychosocial functioning .... symptoms could be mutually exacerbating and ultimately precipitate engagement in detrimental behaviors (e.g., substance abuse), the onset of additional conditions (physical and/psychological), and suicide.” j. On this same day 13 October applicant's commander imposed a bar to reenlistment. In addition to the communicated a threat, he was accused of writing bad checks. The latter could arise not just from anger and anxiety, but TBI injuries such as impaired executive functions, poor memory (unable to recall precise amount of dollars in bank, etc.). k. On 30 December 1983, applicant fueled by anger, defiance, and impaired executive function, forged his commander's signature on a DA Form 428. Article 15 punishment was imposed 11 January 1984 on 30 September 1983. l. Individual Effectiveness Training (IE) [is a] 16-week intense training motivational program. Apparently sometime in March or April, applicant assigned to the IET. This is run by the Army Correctional Training Command. [It is] designed to rehabilitate and return [S]oldiers to duty who do not have court-martial sentences, but "problem [S]oldiers" to reform problem behaviors through strict discipline, long hours of often hard labor. [The applicant experiences] nightmares or is triggered when people yell at him; reminiscent of IET. m. Assignment of applicant suffering from PTSD and PCS, to the IET run by course cadre is another word for "drill sergeants" --this is perhaps considered the evil twin of obsolete rebooting of soldiers with mental illness. Rather today it requires a poly trauma system of care by medical providers carefully collaborating in all disciplines. As applicant is triggered and has nightmares from IET imagery, it likely it made applicant's conditions worse --illustrated by failure at the program. He did later tell Dr. P_ that at JET he had "some kind of break down, seen health clinic on base." n. Although the intent at the time was sincere, being "counseled on numerous occasions for his misconduct and substandard performance," as the BCMR noted in 2002, those efforts were misinformed and misguided. o. On 8 May 1984, he was issued a Letter of Reprimand by his unit commander for his failure to maintain the minimum standards of security and on his commitment to the Army and to complete training. He was further informed that his failure to adjust his attitude would result in his being recommended for discharge. p. On 10 May 1984, the commander of the USACA addressed a letter to the applicant's unit commander, Subject: Unsuccessful Completion of IEC, pertaining to the applicant. This letter confirmed that the applicant failed to successfully complete the IEC and that the course cadre recommended his elimination from the service under the provisions of chapter 14, Army Regulation 635-200. On this same date, the USACA commander submitted a recommendation for the applicant's discharge from the service to the commander of the 1st Infantry Division and Fort Riley Kansas. This recommendation was based on the applicant's failure to successfully complete the IEC. q. On 2 July 1984, the applicant was notified by his commander that separation action was being initiated to eliminate him from the Army under the provisions of chapter 14, Army Regulation 635-200, pattern of misconduct. The commander stated that the basis for the separation action was the applicant's failure to respond to counseling, unsatisfactory performance of duty, and failure to successfully complete the IEC, and he requested that the rehabilitation requirements of paragraph 1-18c, Army Regulation 635-200 be waived. r. On 17 July 1984, the applicant was discharged. He had completed a total of 1 year and 8 months of active military service. s. Applicants immediate post discharge life was chaotic. He did manage an associate’s degree, went through 50 jobs over a number of years so he lived with his mother. But to confirm he left the Army medically unfit, in 1988 he enlisted in the regular Navy but discharged in 60 days for failure to adapt to the military environment. He was then homeless for an indefinite period of time. t. As noted earlier in 2002 he unsuccessfully appealed to the Army BCMR to upgrade his general discharge. u. In 2009, the VA service connected him for PTSD and residuals of TBI. He was granted 70 percent and 50 percent respectively. The effective dates only from his claim filing, not from when TBI residuals and PTSD arose. v. In 2017 the DoD issued the Hagel Memorandum, Clarifying Guidance to Military Correction of Military Records Considering Requests by Veterans for Modification of their Discharge Due to Health Conditions. Under the facts here, as confirmed by the VA and the contract psychiatrist, and applying the liberal evidentiary rules, it is plain that applicant's three TBIs, his post concussive symptoms, and PTSD, caused or at least excused his misconduct. Moreover, this it is not simply where applicant walked away from the Army then merrily carried on with life, but Army service left him psychiatrically crippled under the burden of two mental illnesses. It is not equitable to merely remove the stigma of his general discharge for misconduct but to accompany that with a fair disability rating, as an Honorable retire. This is not only an entitlement but lifts the veil of shame carried for 40 years. w. For the above reasons, the Army BCMR should grant full relief to the applicant. 3. The applicant enlisted in the Regular Army on 18 November 1982 for a period of 3 years and entered active duty. He was awarded the military occupational specialty (MOS) 11B (Infantryman) on 18 April 1983 and transferred to basic airborne training. He was promoted to Private 2 (PV2)/E-2 on 18 May 1983. On 24 May 1983, he was transferred to Fort Riley, KS. 4. A Statement of Counseling, dated 10 August 1983, shows the applicant was counseled on his personal appearance, attitude, and military knowledge. 5. A DA Form 2496 (Disposition Form), dated 14 September 1983, shows the applicant’s had two dishonored checks written to the post exchange (PX). This was recorded as he second offense and his check cashing privileges were suspended for one year. 6. A second DA Form 2496, dated 28 September 1983, shows the applicant had an additional dishonored check to the PX. This was recorded as his second offense and his check cashing privileges were suspended for three years and his identification card (ID) would be overstamped to indicate the suspension. 7. On 8 October 1983, the applicant was counseled for writing a total of 10 checks with no money in the bank to cover them. 8. A third DA Form 2496, dated 11 October 1983, shows the applicant had 4 dishonored checks to the NCO Club. This was recorded has him having three or more recorded offenses. 9. A DA Form 2627 (Record of Proceedings Under Article 15, Uniformed Code of Military Justice (UCMJ)) shows the applicant accepted nonjudicial punishment on 11 October 1983 for wrongfully communicating to Sergeant R_ M. H_ a threat to get even by cutting his tires. His punishment was reduction to the grade of Private (PVT)/E­1, forfeiture of $150.00 a month for one month (suspended until 11 November 1983), restriction for 14 days, and extra duty for 14 days. 10. On 13 October 1983, a DA Form 4126-R (Bar to Reenlistment Certificate) shows action was initiated to bar the applicant from reenlistment. 11. A DA Form 4187 (Personnel Action), dated 25 October 1983, shows the applicant was reduced to PVT/E-1 effective 13 October 1983. 12. A DA Form 2173 (Statement of Medical Examination and Duty Status), shows the applicant was admitted to Irwin Army Community Hospital on 15 October 1983 at 2330 hours for a frontal head injury. The statement shows: . he was under the influence of alcohol at the time . he was mentally sound . the injury was not likely to result in a claim against the government for future medical care and was incurred in the line of duty . the injury was determined to temporary . he was assaulted and kicked in the head in the Camp Forsythe Area, 2000 hours 15 October 1983 . he was on active duty and absent without authority . he was restricted beginning 13 October 1983, the incident occurred on 15 October 1983 13. A Line of Duty Investigation into the applicant’s injury was requested on 31 October 1983. The applicant was notified of the line of duty investigation and acknowledged receipt of the notification on 15 November 1983. 14. A DA Form 2627-2 (Supplementary Action Under Article 15, UCMJ), dated 15 November 1983, shows the vacation of suspension of forfeiture of $150 a month for one month imposed on 13 October 1983 for breaking restriction. 15. On 17 November 1983, the Bar to Reenlistment Certificate was approved. 16. The applicant received counseling on the following occasions: . Statement of Counseling on 23 November 1983 for having his hands in his pockets, being slow to remove them when ordered, refusing to do 10 push-ups, and having an attitude problem . Performance Counseling Form on 12 December 1983 for being absent from the 0600 formation . Statement of Counseling on 10 January 1984 to determine his direction in the Army following his failing airborne school . General Counseling Form on 12 January 1984 for his intent to defraud, falsely make in its entirety the signature of his company commander 17. A DA Form 2627 shows the applicant accepted nonjudicial punishment on 17 January 1984 for his intent to defraud, falsely make in its entirety the signature of his company commander. His punishment 14 days extra duty. 18. The applicant received counseling on the following occasions: . Performance Counseling Form on 18 January 1984 states he is knowledgeable about his infantryman skills… he cannot be depended upon to make the correct decision for himself . Statement of Counseling on 23 January 1984 for leaving his wall locker unsecured . Statement of Counseling on 24 January 1984 for not wearing proper uniform . Statement of Counseling on 25 January 1984 for pushing his room door open while in anger, it slammed against his wall locker and wall, causing the door to no longer secure 19. A DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), dated 7 February 1984, shows the applicant was restricted at the time of his injury. This, along with the CID investigation points out that the applicant provoked the incident and find the injury not in the line of duty. The form is noted the applicant met with a lawyer on 18 January 1984. The final disposition of the injury was not in the line of duty – due to own misconduct. 20. The applicant received counseling on the following occasions: . Performance Counseling Form on 21 February 1984, states, he showed a lot of hustle in the field…he is slow in getting up and ready in the morning… . Statement of Counseling on 24 February 1984 for leaving work prior to being released, and returning the next morning, late for formation . Performance Counseling Form on 27 February 1984, states, …notice a complete change in his attitude and it has been for the best… his negative feeling against his peers i.e. because of color or creed, almost started a chain reaction that would have hurt the squad and platoon… he needs to take care of his personnel hygiene every day . Statement of Counseling on 1 March 1984 (morning) for failure to keep his (load bearing equipment (LBE) available; he lost his LBE upon return from the field, was required to purchase some more, and did not have it available for inspection, given until 2000 hours to have his LBE . Statement of Counseling on 1 March 1984 (evening) for not being prepared for barracks and in-ranks inspection, he needed a haircut, was missing both field jackets, and his room was not prepared . Statement of Counseling on 19 March 1984 for not preparing himself or his equipment for Individual Effectiveness Course (IEC) 21. Training Progress Notes, dated 23 March 1984, shows the basis for report as social work intake. He was seen for an intake interview. He had been sent to the United States Army Correctional Activity (USACA) to attend IEC. The applicant completed a corresponding Social Work Inprocessing questionnaire. 22. The applicant received the following Training Progress Notes: . 27 March 1984, states while on a work detail, Team B, Unit 4 was given a lawful order to discontinue their talking while performing their duties; [the applicant] continued to talk and caused disorder among the others . 5 April 1984, states, in part, the applicant was seen as a walk-in; he complained that he could not control his anger and was frightened of what he might do; he stated that he was sent here because of an attitude and motivation problem and he feels that he is ready to explode . 6 April 1984, states, in part, the applicant was found in an off limits area with the lights off, his belt unfastened, pants unbuttoned, and his underwear visible . 7 April 1984, states at approximately 2030 while conducting a check of the unit, the applicant was observed laying across the new cloth furniture, asleep in “B” team day room; he was in uniform and had his combat boots on the furniture; he violated two orders: not sleep in the day room and not place his feet on the furniture for any reason; [he] displays a total lack of willingness to abide by rules/regulations/orders or instructions; totally unacceptable behavior . 9 April 1984 0435 hours, states, at approximately 0435 hours, a check was conducted on the unit area to locate the fireguard who were to make checks with the orderly room every twenty minutes – fire guards had failed to report at 0420 hours; the fire guards were found on the top floor of the building; [the applicant] was folding his blankets; he violated his fire guard orders and was derelict in performance of his duties in that he was specifically told during the fire guard briefing on 8 April 1984 at 2045 hours, that fire guard is a continuous walking post and that fire guards would not stop walking their post for any reason; when asked what he was doing he stated he was folding his blankets; he was told to move out and continue to walk his post; he continued to work on his blankets and had to be told again; this time he stated he had to wake the troops; he was then told to move out again; he reluctantly did so; he continuously breaks rules/regulations; he also stated SSG M_ told him to wake the troops at 0445 hours – checked with SGT M_ -he stated he did not tell [the applicant] anything . 9 April 1984, states at approximately 0610 hours, [the applicant] was told there will be a recall formation at 0640; he failed to be at his place of duty at the appointed time . 10 April 1984, states, in part, at approximately 0710 hours [the applicant]’s wall locker was found unsecure; his locker was totally unprepared for any type of inspection . 10 April 1984, states, in part, the applicant was derelict in his duties . 18 April 1984, states, in part, on or about 0520 hours, [the applicant’s] wall locker was unsecure when team fell outside for physical training (PT) formation . 19 April 1984 at 0725 hours, states, in part, he failed to return directly from appointment . 19 April 1984 at 1500 hours, states, in part, he is willfully manipulating the cadre member to get what he wants by asking until he is told yes . 19 April 1984 at 1825 hours, states his wall locker was unsecure . 19 April 1984, states he was recommended for a reprimand for a security violation . 19 April 1984, states he was recommended for an article 15 for DLO and violation of quarters; he fully disobeyed orders given him to take the most direct route to and from appointment, also ignored medical advice by going to places not covered by quarters; his performance and attitude have gone downhill sharply in the last ten days . 20 April 1984, states he was recommended to be eliminated from the service under chapter 14; his performance is way below standard and his incidents of misconduct are numerous; further retention of this service member would be a waste of the government’s time and money . 21 April 1984, states he received a security violation . 23 April 1984 at 0551 hours, states, in part, he abused medication by taking more than the doctor had authorized during a 6-hour period . 23 April 1984 at 0845 hours, states he left his wall locker unsecure . 26 April 1984, states, states in part, he lacks in initiative and motivation . 27 April 1984, states he was recommended for an article 15 for his fourth consecutive security violation; he was found to have left his wall locker unsecured on 10 April 1984, 19 April 1984, and 23 April 1984; he also had personal belongings on his bunk, while he was sleeping, that were unsecured on 21 April 1984 . 28 April 1984, states he was tasked to wipe out the wall lockers; the wall lockers were inspected and found them done in a very inefficient manner . 5 May 1984, states he had a security violation . 7 May 1984, states, in part, he was recommended to be eliminated from service under chapter 14 . 8 May 1984, states he was recommended for discharge from the Army under chapter 14; he shows no potential to progress his military career; he lacks initiative to follow through with his duties; he should be discharged so he can start his civilian career and life 23. The applicant was given a Letter of Reprimand for failure to maintain the minimum standards of security. He acknowledged receipt on 8 May 1984. 24. On 10 May 1984, the applicant was recommended for elimination from the service under chapter 14 AR 635-200, following failure to complete successfully the IEC. 25. The applicant’s Bar to Reenlistment was reviewed on 14 May 1984, and removal was not recommended. 26. The applicant received General Counseling Forms on the following occasions: . 1 June 1984, for the month of May . 5 June 1984 at 0500 hours, for failure to conduct personal hygiene and clean personal area . 5 June 1984 at 1300 hours, for failure to go to appointed place of duty and disobeying a lawful order . 10 June 1984, for failure to go to appointed place of duty on 8 and 9 June 1984 . 11 June 1984, for absenting himself from his appointed place of duty on 8, 9 and 10 June 1984 27. A DA Form 3822-R (Report of Mental Status Evaluation), dated 19 June 1984, shows his behavior was normal, was fully alert and oriented. His mood or affect was unremarkable, his thinking process clear, thought content normal, and memory was good. It was determined he has the mental capacity to understand and participate in the proceedings and was mentally responsible, and meets retention requirements. 28. The applicant received General Counseling Forms on the following occasions: . 20 June 1984 at 0600 hours, for absenting himself from his appointed place of duty . 20 June 1984 at 0730 hours, for not reporting at the appointed time 29. On 2 July 1984, the applicant was notified that separation had been recommended under the provisions of AR 635-200, paragraph 14-12b. He acknowledged his rights to consult with a consulting counsel or civilian counsel, present his case before a board of officers, submit statements on his own behalf, to be represented at any hearing, to waive the foregoing rights in writing, and to withdraw a waiver of rights prior to separation. After consulting with counsel, the applicant waived his right to have his case considered by a board of officers, a personal appearance before a board of officers, and representation by consulting counsel. He elected not to submit statements on his own behalf. 30. A second DA Form 3822-R (Report of Mental Status Evaluation), dated 2 July 1984, shows his behavior was normal, was fully alert and oriented. His mood or affect was unremarkable, his thinking process clear, thought content normal, and memory was good. It was determined he has the mental capacity to understand and participate in the proceedings and was mentally responsible, and meets retention requirements. 31. On 2 July 1984, the applicant elected that he did not desire a separation medical examination. 32. The applicant was discharged under honorable conditions on 17 July 1984 under the provisions of AR 635-200, paragraph 14-12b for misconduct – pattern of misconduct. He was credited 1 year 8 months of net active service. His separation code is JKM and reenlistment code RE-3. 33. The applicant applied to the ABCMR on 22 November 2001 to upgrade his character of service from general, under honorable conditions to honorable, change the narrative reason for separation from misconduct to expiration of enlistment, and adjust his dates of service accordingly. His case was considered on 11 April 2002. He was notified on 25 April 2002 that his application had been denied. 34. The applicant applied for reconsideration of his prior application on 25 January 2010. He was notified on 26 April 2010 that his case was administratively closed without referral to the board. His case had been considered more than 1 year prior to his application and there are no regulatory provisions that provide for further reconsideration of his case. The ABCMR advised him that he has the option to seek relief in a court of appropriate jurisdiction. 35. The applicant provided a copy of his entitlement to VA benefits letter, dated 24 July 2017, that shows his combined evaluation for compensation at 90 percent effective 12 December 2012. 36. The applicant provided a copy his SSA entitlement letter, dated 12 March 2015, that shows he is entitled to monthly disability benefits. 37. The applicant provided a copy of his VA rating decision letter, dated 27 July 2010, that shows he is rated: . 70 percent for posttraumatic stress disorder with depression and anxiety effective 14 April 2009 . 40 percent for residuals, traumatic brain injury with related headaches, insomnia, fatigue, malaise, memory and cognitive impairment, blurred and double vision associated with headaches and hypersensitivity to light effective 15 October 2009. 38. 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, use of illegal drugs, and convictions by civil authorities. 39. 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. 40. 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. 41. 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. 42. 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). 43. MEDICAL REVIEW: a. Applicant is applying to the ABCMR requesting discharge upgrade contending that the misconduct leading to his Under Honorable Conditions (General) discharge was due to PTSD/TBI that he developed while on active duty. He is also requesting that he receive a Medical Disability from the time of his discharge. b. The Agency psychologist was asked by the ABCMR to review this request. Documentation reviewed includes the applicant’s completed DD149 and supporting documentation and his military separation packet. The VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed as well. The military electronic medical record (AHLTA) was not reviewed as it was not in use during his time in service. No hard copy military medical records or civilian medical documentation was provided for review. c. Review of the applicant’s military documentation indicates that he enlisted in the Regular Army on 18 Nov 1982. During his service, his awards included the Army Service Ribbon. His primary job position was as an Infantryman. He received an Article 15 for threatening an NCO, “get even by cutting his tires” (30 Sep 1983). He received another Article 15, dated 30 Dec 1983, that specified, “intent to defraud, falsely make…signature of your Company Commander.” A Bar to Reenlistment, dated 13 Oct 1983, cited him for “communicating a threat to an NCO,” (noted above) as well as numerous “bad checks” written on numerous accounts. A Report of Investigation, Line of Duty and Misconduct Status, dated 07 Feb 1984 indicated, “CID investigation which I believe points out that Pvt Ramey provoked the incident leads me to find him not in line of duty.” He received a considerable number of counseling statements mostly in 1984 for various infractions including anger outbursts, dereliction of duty, disobeying orders, not securing wall locker, abusing medications, personal hygiene, absences from duty and unsatisfactory performance. An Unsuccessful Completion of the Individual Effectiveness Course document, dated 10 May 1984 noted, “failed to complete successfully the Individual Effectiveness Course and has been recommended by the cadre for elimination from the service.” Recommendation for Separation under the Provisions of AR 635-200, dated 08 Jul 1984 indicated, “SM has demonstrated by his continual failure to respond to counseling and his unsatisfactory performance of duty that he is unqualified for further military service…failure to maintain minimum standards and was also reprimanded for his lack of security in maintaining his wall locker.” He received an Under Honorable Conditions (General) discharge on 17 Jul 1984 with narrative reason for separation, Misconduct – Pattern of Misconduct. d. He briefly enlisted in the Navy in early 1988, but received Administrative Separation, dated 16 May 1988 which noted, “has been counseled concerning noted deficiencies, but the recruit continues to demonstrate a failure to adapt to the military environment.” e. A Statement of Medical Examination and Duty Station, dated 15 Oct 1983 indicated, “Frontal Head Injury…EM was assaulted and kicked in the head in the Camp Forsyth Area.” A Social Work Assessment, dated 19 Mar 1984 noted his concerns, “am very displeased with my unit to the point of disdain and serious frustration. Would like to be reassigned anywhere, but have a strong desire for Korea.” Two Reports of Mental Status Evaluation, dated 19 Jun 1984 and 02 Jul 1984, both noted normal behavior, unremarkable mood/affect and normal thought content, as well as meeting retention standards. f. The VA electronic medical record, Joint Legacy Viewer (JLV) did indicate a 90% service connected disability with Posttraumatic Stress Disorder 70%, Migraine Headaches 50%, Traumatic Brain Disease 10% and Tinnitus 10%. A Psychology Outpatient Note, dated 25 Jan 2011 indicated, “having depressed mood, as he was diagnosed by the VA. He was also considered a victim of attempted robbery, was assaulted and was struck on the right side of your head. Hence he was labeled with TBI (Traumatic Brain Injury) having sustained head injury, mouth contusion…has been seeing a Psychiatrist in x.” The Problem List included Anxiety Disorder Unspecified (17 Apr 2017), Posttraumatic Stress Disorder, Unspecified (17 Apr 2017), Sleep Apnea, Unspecified (17 Apr 2017), Major Depressive Disorder, Recurrent, Moderate (14 Mar 2017), Personal History of Traumatic Brain Injury (31 Aug 2016), Posttraumatic Stress Disorder (03 Sep 2010), Unspecified Cognitive Disorder (12 Aug 2010), Personality Disorder, Antisocial (08 Jan 2010), and Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. g. Review of the applicant’s medical-military records indicate the following: (1)AStatement of Medical Examination and Duty Station (Oct 1983) noted a head Injury due to an assault that included being kicked in the head. (2)ASocial Work Assessment (Mar 1984) indicated his dissatisfaction and frustration with his unit and a strong desire to be transferred. (3)Two Reports of Mental Status Evaluation (Jun 1984, Jul 1984) determined that his behavioral health status was stable and that he met retention standards. (4)The available records do not indicate that an MEB for behavioral health reasons had been considered. (5)There was no indication from the available medical-military records that a temporary or permanent profile had been initiated for behavioral health reasons. h. Review of the VA electronic medical record (JLV) indicates a 90% service connected disability with Posttraumatic Stress Disorder 70%, Migraine Headaches 50%, Traumatic Brain Disease 10% and Tinnitus 10%. (1) It is important to understand that any VA findings of service connection does not automatically result in a military medical retirement. The VA operates under different rules, laws and regulations when assigning disability percentages than the Department of Defense (DOD). In essence, the VA will compensate for all disabilities felt to be unsuiting. The Department of Defense, however, does not compensate for unsuiting conditions. It only compensates for unfitting conditions. Based on the available military records, there is a lack evidence that the applicant suffered from unfitting psychiatric conditions of PTSD, TBI or other behavioral health conditions. Also, the available medical records for this medical advisor’s review does indicate that he did meet military medical retention standards. (2) It is also important to note that the Department of Defense does not compensate service members for anticipated future severity or potential complications of conditions that were incurred during active military service. This is a role reserved for the VA. i. In conclusion, the following determinations are made. (1)The applicant’s military records do not support the presence of boardable behavioral health conditions of PTSD, TBI or any other behavioral health conditions. (2)The applicant’s military records indicate that the applicant did meet medical retention standards IAW AR 40-501 regarding behavioral health conditions. (3)Applicant’s behavioral health condition DOES NOT support separation through medical channels. (4)The applicant’s medical conditions regarding behavioral health symptoms, diagnoses and adverse impact on him was duly considered during medical separation processing. j. It is therefore the opinion of the Agency psychologist that a referral of the applicant’s record to IDES for consideration of military medical retirement for PTSD, TBI or other behavioral health conditions is not warranted at this time. k. Based on the available information and in accordance with the Liberal Consideration guidance, it is the opinion of the Agency psychologist that the applicant has partially mitigating Behavioral Health conditions, PTSD and TBI. This applies in particular to his difficulties with anger, disrespectful/ threatening behavior, absences from duty, unsatisfactory performance, disobeying orders and negligence of personal finances. As there is an association between PTSD and avoidant behavior, there is a nexus between applicant’s diagnosis of PTSD and his absences/neglectful performance from required duty functions. Also, as there is an association between PTSD/TBI and resistant, negative attitudes toward authority figures, there is a nexus between his symptoms and the disrespectful, threatening behavior he demonstrated. The combined impact of PTSD and TBI more likely than not contributed to his mismanagement of personal finances and disorganized, inattentive behavior that impacted his capacity to properly exhibit military bearing and management of personal quarters/hygiene. Chronological review of his military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred during his time in service, most notably in 1983 and 1984. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who develop PTSD/TBI in a noncombat environment. However, the purposeful act of fraudulently using his commander’s signature is not part of the natural history or sequelae of PTSD/TBI and, as such, is not mitigated under Liberal Consideration. Nonetheless, a discharge upgrade is encouraged. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, record of service, the frequency and nature of misconduct, and the reason for separation. The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the entirety of his misconduct. Board members noted that the applicant may have had partially mitigating Behavioral Health conditions: PTSD and TBI. There is an association between PTSD and avoidant behavior, implying a nexus between applicant’s diagnosis of PTSD and his absences/neglectful performance from required duty functions. Additionally, there is an association between PTSD/TBI and resistant, negative attitudes toward authority figures, also implying a nexus between his symptoms and the disrespectful, threatening behavior he demonstrated. The combined impact of PTSD and TBI more likely than not contributed to his mismanagement of personal finances and disorganized, inattentive behavior that impacted his capacity to properly exhibit military bearing and management of personal quarters/hygiene. However, the purposeful act of fraudulently using his commander’s signature is not part of the natural history or sequelae of PTSD/TBI and, as such, is not mitigated under Liberal Consideration. The applicant did not provide evidence of post-service achievement or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined the applicant’s character of service was not in error or unjust. For that reason, the Board voted to deny this portion of his request. 2. Board members further noted that the applicant has a VA rating for various service-connected disabilities (PTSD, Migraine Headaches, Traumatic Brain Disease, and Tinnitus). However, here it is important to understand that any VA findings of service connection does not automatically result in a military medical retirement. The VA operates under different rules, laws and regulations when assigning disability percentages than the Department of Defense (DOD). The VA will compensate for all disabilities felt to be unsuiting. DOD however, does not compensate for unsuiting conditions. It only compensates for unfitting conditions. Based on the available military records, there is a lack evidence that the applicant suffered from unfitting psychiatric conditions of PTSD, TBI or other behavioral health conditions at the time of service. Also, the available medical records for this medical advisor’s review does indicate that he did meet military medical retention standards. For that reason, Board members voted to deny the portion of his request related to a disability separation or retirement. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XX: DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. Regarding his reconsideration of his prior request to upgrade his character of service from general to honorable, 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 Docket Number AR2001065659 on 11 April 2002. 2. Regarding the new issue of medical separation, 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. X CHAIRPERSON 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, USC, 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 ABCMR determines it would be in the interest of justice to do so. 2. 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, use of illegal drugs, and convictions by civil authorities. 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 14-12b (pattern of misconduct) states member are subject to separation for a pattern of misconduct consisting of: (1) Discreditable involvement with civil or military authorities. (2) Conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. 3. 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. 4. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system 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. 5. 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. 6. 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. 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 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. 8. 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. //NOTHING FOLLOWS//