IN THE CASE OF: BOARD DATE: 16 December 2021 DOCKET NUMBER: AR20210009655 APPLICANT REQUESTS: * change in the narrative reason for separation to reflect medical discharge * an upgrade of her uncharacterized discharge to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * six Department of Veterans Affairs (VA) decision letters 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 she is requesting her character of service be upgraded to honorable and the narrative reason for separation be updated to reflect a medical discharge or a more accurate reflection of her circumstances. During her service she suffered a mental health episode which led to her discharge. The episode was the first of continued mental health issues which have been deemed service connected and rated at 70% disabling. Given the circumstances, she believes her DD Form 214 should be corrected to reflect the service connected disability that led to her discharge. 3. The applicant provides: a. A DD Form 214 for her active service from 30 October 2002 to 23 April 2003. b. Six VA decision letters: * 10 February 2021 – a summary of benefits letter shows the applicant has a service connected evaluation of 70% with the last effective date of change on 1 February 2021; she is not considered totally and permanently disabled * 11 February 2021 – applicant was notified her evaluation of major depressive disorder was increased from 0% to 70% effective 20 January 2021; service connection for personality disorder was denied * 10 February 2021 – attached to the 11 February 2021 letter, outlined the decision made and details which led to the increase in evaluation * 14 February 2021 – the letter certified the applicant’s service period and listed her character of services as “under honorable conditions” * 25 February 2021 - the letter certified the applicant’s service period and listed her character of services as “under honorable conditions” * 25 February 2021 – certified the applicant was receiving service connected disability compensation at 70% effective 1 February 2021 4. A review of the applicant’s service record shows: a. She enlisted in the Regular army on 30 October 2002. b. A DA Form 3822-R (Report of Mental Status Evaluation), dated 11 February 2003, confirmed the applicant was referred because of a request for discharge for the good of the service. The physician noted in the remarks the applicant was diagnosed with adjustment disorder with depressed mood. The physician included in the remarks that the treatment team had determined that there was no psychiatric disease or defect that warranted disposition through medical channels. The condition and the problem presented by the applicant was not, in the opinion of the examiner, amenable to hospitalization, treatment, transfer, disciplinary action, training or reclassification to another type of duty within the military. The evaluation further indicated: * normal behavior and fully alert * fully oriented and unremarkable mood or affect * mood or affect – unremarkable, depressed * clear thinking process, normal thought, and good memory * mentally responsible, able to distinguish between right and wrong and to adhere to the right * had the mental capacity to understand and participate in administrative proceedings c. A memorandum for record, dated 12 February 2003, indicated the applicant was admitted to Walter Reed Army Medical Center (WRAMC) for depressive symptoms and was placed on medication. Due to her mental illness, it had been determined that she would not be suitable for further service in the military. The treatment team was of the opinion that her illness did not warrant disposition through medical channels and it was unlikely that further rehabilitative efforts would be successful if the applicant was retained on active duty. It was recommended that she undergo an entry level separation. It was discussed with the applicant and she voice understanding of the recommendation and was in agreement. d. A MEDCOM Form 699-R (Mental Status Evaluation), dated 19 February 2003, confirmed the applicant was referred for a mental evaluation because she was being considered for discharge. The physician included in the remarks the applicant possessed sufficient mental capacity to understand and cooperate intelligently as a respondent in any administrative or judicial proceedings and denied suicidal thoughts or ideations. The evaluation further indicated: * normal behavior and fully alert * fully oriented and slight depressed * clear thinking process, normal thought content, and good memory * she had the mental capacity to understand and participate in the proceedings * she was mentally responsible * she was cleared for administrative action deemed appropriate by the command e. The service record includes a DD Form 2807-1 (Report of Medical History), dated 6 March 2003, completed by the applicant where she marked “yes” to numerous health challenges/concerns and provided details in the explanation of “yes” in Block 29. The evaluating physician also included in Block 30a (Comments): * chronic lower back pain – improving with physical therapy * drug overdose on Naproxen due to depression/anxiety, family separation * right ovariectomy as a baby f. A DD Form 2808 (Report of Medical Examination), dated 19 March 2003, shows the applicant was undergoing an examination for the purpose of separation. The applicant’s depression was annotated in Block 44 (Notes) and in Block 74a (Examinee/Applicant) marked “not qualified for service” with Chapter 11 annotated. g. Two DA Forms 4856 (Developmental Counseling Form) from the applicant’s drill sergeant and the commander notified the applicant on 11 March 2003 of the intent to initiate separation proceedings under Chapter 11. h. The applicant’s immediate commander notified the applicant of his intent to separate her under the provisions of Chapter 11, Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separation), for entry level status performance and conduct. The reasons for his proposed action were because she was placed on medication for depressive symptoms. The condition is thought to be caused by her enlistment into the U.S. Army and her inability to adapt to military service. She acknowledged receipt of the notification on 10 April 2003. i. After declining consultation with legal counsel, she acknowledged: * receipt of the notification of separation * the rights available to her and the effect of waiving said rights * she is ineligible to apply for enlistment in the Army for 2 years after discharge j. The immediate commander initiated separation action against the applicant for entry level status performance and conduct. The commander recommended an uncharacterized discharge. k. The separation authority approved the discharge recommendation for immediate separation under the provisions of AR 635-200, Chapter 11, for entry level status performance and conduct. l. Orders 111-0002, dated 21 April 2003, discharged the applicant from active duty with an effective date of 23 April 2003. m. On 23 April 2003, she was discharged from active duty with an uncharacterized characterization of service. Her DD Form 214 she completed 5 months and 24 days of active service. She was assigned separation code JGA and the narrative reason for separation listed as “Entry Level Performance and Conduct.” 5. By regulation (AR 635-200), a separation is described as an entry-level separation if processing is initiated while a member is in an entry-level status. This separation policy applies to Soldiers who enlisted in the Regular Army, Army National Guard, or U.S. Army Reserve who are in entry level status and, before the date of initiation of separation action, have completed no more than 180 days of creditable continuous active duty or IADT by the date of separation and have demonstrated they are not qualified for retention. 6. By regulation (AR 635-5), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. Block 28 (Narrative Reason) is based on regulatory or other authority and can checked against the cross reference in AR 635-5-1 (Separation Program Designator (SPD) Codes). 7. By regulation (AR 635-5-1), currently in effect, enlisted Soldiers receive separation codes in accordance with the guidelines published for separations per Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). The narrative reason for the separation will be entered in block 28 of the DD Form 214 exactly as listed in tables 2-2 and 2-3. Table 2-3 lists for the SPD code and narrative reason JGA – entry level performance and conduct per AR 635-200, chapter 11. 8. By regulation (AR 635-40), the Army disability system 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. The regulation 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. 9. 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. 10. Title 38, United States 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. 11. Title 38, Code of Federal Regulations, 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. 12. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. a. A review of her service record indicates she was psychiatrically admitted to WRAMC for depressive symptoms after an attempted overdose on Naprosyn. She reported depressive and anxiety symptoms due to family separation. She was diagnosed with Adjustment Disorder with Depressed Mood and recommended for administrative separation. The determination that there were no conditions that warranted disposition through medical channels indicates she met retention standards. b. She completed a mental status evaluation on 11 February 2003 and again on 19 February 2003 and was cleared both times. On 6 March 2003, she completed a separation physical that found she met retention standards. c. A review of the VA's Joint Legacy Viewer indicates the applicant completed a Compensation and Pension (C&P) examination on 17 August 2006. (1) The applicant reported she did not take the depression medication she was prescribed when discharged from the military. She stated that at the age of 17 she spoke with her primary care provider about feeling depressed but did not seek treatment. She reported that she had difficulty with her peers in training and did not want to deploy to Iraq due to the people she was serving with were not her friends and she didn’t think they would protect her in Iraq. The culminating stress and lack of social support led to the hospitalization. The provider noted that the applicant’s “adjustment disorder that exhibited in the service is stabilized with few symptoms residuals.” The applicant reported employment with no mental health days in the past year. She reported a history of cutting behavior especially if she and her husband get in a fight. She was sent to human resources at her job after an anonymous report that she was self-injuring. She did not pursue treatment or use employee assistance program resources. The provider noted “these are symptoms of a personality issue not a continuation of the adjustment disorder." The psychologist diagnosed her with Adjustment Disorder and Borderline Personality traits. He noted that her adjustment disorder was stable and she did not require medication or therapy at this time. He documented there was no occupational or social impairment and she had a service connected rating of 0%. (2) She completed a second C&P on 4 February 2021. She was diagnosed with Major Depressive Disorder (MDD) and was subsequently awarded a service connected disability rating of 70% effective 20 January 2021. d. There is documentation to support a behavioral health diagnosis at the time of her discharge. She met retention standards at the time of her discharge thus medical retirement/disability is not warranted. It is acknowledged that the applicant has a service-connected disability of for MDD. This determination alone, however, does not automatically mean that military medical disability/retirement is warranted. It is important to understand that 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 DoD does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting. Of note, her initial C&P in 2006 found no social or occupational impairment. Her psychiatric condition subsequently worsened and resulted in a rating of 70%. However, the role of compensating for post-separation progression or complications of service-connected conditions was granted by Congress to the VA and is not a function or role of the DoD. Medical disability/retirement is not warranted. Her characterization of service is based on duration of service and is not a reflection of her psychiatric diagnosis or performance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the applicant did not have any conditions that warranted for review for possible retirement or separation due to disability. The Board also noted that Soldiers discharged before completing 180 days of service will have their service designated as "uncharacterized" in accordance with regulation. Based on a preponderance of evidence, the Board determined the reason and authority for the applicant's discharge and her uncharacterized service are not in error or unjust. 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: 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separation), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. 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. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 11 sets policy and provides guidance for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. It states when separation of a member in entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, the member normally will be separated per this chapter. This separation policy applies to Soldiers who enlisted in the Regular Army, Army National Guard, or U.S. Army Reserve who are in entry level status and, before the date of initiation of separation action, have completed no more than 180 days of creditable continuous active duty or IADT by the date of separation and have demonstrated they are not qualified for retention for one or more of the following reasons: * cannot or will not adapt socially or emotionally to military life * cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline * have demonstrated character and behavior characteristics not compatible with satisfactory continued service * failed to respond to counseling 3. Army Regulation 635-5 (Separation Documents) states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. Block 28 (Narrative Reason) is based on regulatory or other authority and can checked against the cross reference in AR 635-5-1 (Separation Program Designator (SPD) Codes). 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provides separation program designator (SPD) codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The narrative reason for the separation will be entered in block 28 of the DD Form 214 exactly as listed in tables 2-2 and 2-3. Table 2-3 lists for the SPD code and narrative reason JGA – entry level performance and conduct per AR 635-200, chapter 11. 5. 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, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (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 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 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. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 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. 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 rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 8. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness is made, disabilities are rated using the VA schedule of disability rating. 9. 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. 10. 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. 11. 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. 12. 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on 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. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210009655 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1