IN THE CASE OF: BOARD DATE: 19 October 2021 DOCKET NUMBER: AR20210012550 APPLICANT REQUESTS: a medical retirement vice his honorable discharge due to Non-Retention on Active Duty.” APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293(Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Summary of Benefits Letter * VA Medical Records (49 pages) * Military Medical Record (230 pages) 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 is requesting to be considered and evaluated based on his service treatment records for physical and mental issues that impacted him during service. His command did not inform him of the medical process during his time I service and he was in a bad state of mind the last few years of service. He was suffering from post-traumatic stress disorder (PTSD), anxiety, anger issues, and other musculoskeletal issues and pain, yet no one in the Army provided him guidance. He felt like he was pushed out of the door, with all the hardships he encountered in service, and no assistance. He would like to be evaluated by a military medical board to be considered for medical retirement. He is currently rated by the VA for PTSD, traumatic brain injury (TBI) and other issues. 3. The applicant provides: a. A DD Form 214 for his active service from 2 January 2003 to 2 June 2015. b. A VA Summary of Benefits letter, dated 7 October 2020, which states the applicant is currently receiving VA benefits. His combined service connected disability rating is 100%, with his last effective date of change on 1 December 2019. He is considered permanently disabled due to his service connected disabilities effective 18 August 2017. c. VA medical records (49 pages) for treatment received from the VA from Military Medical Record (230 pages) from approximately 17 November 2015 through 9 October 2020. d. The applicant’s full military medical record (230 pages) for his medical treatment received during his tenure in service, from approximately 2 January 2003 to 2 June 2015. 4. A review of the applicant’s service record shows: a. He enlisted in the U.S. Army Reserve (USAR) on 26 July 1999. b. A Standard Form (SF) 88 (Report of Medical Examination), dated 15 June 1999, shows he underwent a medical examination for the purpose of enlistment. The clinical evaluation annotated three abnormalities for ears, feet, and identifying tattoos. Block 77 (Examinee) indicated the applicant was qualified for service. c. He entered active duty on 19 October 1999. He was honorably released from active duty on 24 March 2000. His DD Form 214 shows he completed 5 months and 6 days of active service. He was awarded military occupational specialty (MOS) 11H, Heavy Anti-Armor Weapons Infantryman. d. Orders 03-064-00001, dated 5 March 2003, honorably discharged the applicant from the USAR with an effective date of 2 January 2003. e. He enlisted in the Regular Army on 2 January 2003. f. His Enlisted Record Brief (ERB) indicated his MOS was 11B, Infantryman. His deployments include: * Iraq from 2 January 2004 to 16 March 2005 * Iraq from 4 October 2006 to 4 December 2007 * Iraq from 13 December 2008 to 4 December 2009 * Afghanistan from 1 April 2011 to 12 September 2011 g. A DA Form 4187 (Personnel Action), dated 26 March 2010, shows the applicant requested a name change because his middle and last names were erroneously processed. His name was listed as F__ and requested the correction to show M__. A Petition for Name Change, dated 25 March 2010, was included with his request. h. His records contains a DD Form 2807-1 (Report of Medical History), completed by the applicant on 26 March 2015 for the purpose of separation. Block 30 (Comments) also listed “TBI in December 2006” as a major injury, in addition to sleep disturbance and anxiety as “Other Medical Problems.” The applicant provided additional details in Block 29 (Explanation of “Yes” Answers) and responded “Yes” to the following: * prescribed or used an inhaler * painful shoulder with recurrent back pain or back problems * foot trouble, swollen or painful, and knee trouble * frequent or severe headaches, head injury, memory loss, or amnesia, and period of unconsciousness or concussion * frequent trouble sleeping, received counseling, and been evaluated or treated for a mental condition * treated in an emergency room for lower back i. The applicant completed a DD Form 2697 (Report of Medical Assessment) on 26 March 2015 and expressed the below concerns: * he suffered from injury or illness for which he did not seek medical care * he had concerns regarding PTSD * he intended to seek VA disability for TBI, lower back pain, and possible PTSD j. A DD Form 2808 (Report of Medical Examination), dated 26 April 2008, shows the applicant was undergoing an examination for the purpose of separation and indicated in Block 74a (Examinee/Applicant) the applicant was qualified for service. Additional notes were in Block 78 (Recommendations): * referral to behavioral health * f/u for lower back pain with physical therapy * referral to sleep hygiene class j. The applicant’s service record is void of notification of elimination through the Qualitative Management Program (QMP), nor does it show the applicant was flagged. k. Orders 062-2215, dated 3 March 2015, discharged the applicant from active duty with an effective date of 2 June 2015. l. He was honorably released from active duty on 2 June 2015. His DD Form 214 shows he completed 12 years, 10 months, and 7 days of active service with 5 months and 5 days of prior active service, and 2 years, 6 months, and 24 days of prior inactive service. He was assigned separation code “JGH” and the narrative reason for separation listed as “Non-Retention on Active Duty” under separation authority Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 4. 5. The applicant's service record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 6. By regulation (AR 635-8), 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), in effect at the time, 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 or 2-3 of the regulation. Table 2-3 lists for the SPD codes and narrative reasons: * JBK – Completion of Required Active Service per AR 635-200, chap 4 * JGH – Non-Retention on Active Duty per AR 635-200, paragraph 19-12 8. By regulation (AR 635-200), action will be taken to separate a Soldier for other physical or mental conditions not amounting to disability (AR 635-40) and excluding conditions appropriate for the separation processing under paragraph 5-11 or 5-13 that potentially interferes with assignment to or performance of duty. a. Chapter 4 (Separation for Expiration of Service Obligation) of the regulation states a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. A Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a charter of service of honorable, unless the Soldier is in entry-level status and service is uncharacterized. b. Chapter 19 (Qualitative Management Program), paragraph 19-12 (Involuntary Discharge), states except as otherwise provided in this section, Soldiers who choose not to appeal the QMP selection for denial of continued service, or whose appeal is denied, will be involuntarily discharged. Soldiers who elect to appeal but fail, without compelling justification, to submit the appeal within the time prescribed, will also be involuntarily discharged. The service of a Soldier discharged under this chapter will be characterized as honorable. 9. 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. 10. 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. 11. 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. 12. 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. 13. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) indicates he has electronic medical records from February 2006 until his discharge. His first behavioral health appointment was on 25 Jan 2008 in the Substance Use Disorder clinic at Ft Hood. He was diagnosed with Alcohol Intoxication. He completed 3 group sessions for substance abuse. On 23 Nov 2010 he was evaluated in the Neuropsychology clinic due to reported memory difficulties. Results of neuropsychological testing “did not suggest the presence of late or lasting effects of TBI. Instead the pattern is most consistent with anxiety and anxiety related conditions.” He was diagnosed with Anxiety Disorder, not otherwise specified (NOS) and referred to behavioral health clinic for treatment. The applicant did not follow-up to establish treatment. On 12 Mar 2013, he was seen for a mental status evaluation as part of Chapter 14 administrative separation process. He screened negative for PTSD and TBI and met retention standards IAW AR 40-501. On 15 Jan 2015, the applicant was evaluated at the Family Advocacy Program (FAP) clinic due to domestic violence incident in his on-post quarters. The applicant admitted grabbing and shoving his wife to get out of the house. The blotter report indicates he had a kitchen knife during the incident. He was enrolled in FAP for treatment and referred to the Army Substance Abuse Program (ASAP) for evaluation. On 30 Jan 2015, he was evaluated in the ASAP clinic and diagnosed with Alcohol Abuse. He was enrolled ASAP program and completed the required treatment. On 1 Apr 2015, he was seen in primary care for insomnia subsequent to his father’s death. His ASAP and FAP cases were closed due to his discharge. A review of his service record indicates he completed his separation physical on 1 Apr 2015. His PULHES were all 1s indicating he met retention standards IAW AR 40-501. A review of JLV indicates the applicant has a service connected disability rating of 100% with 50% for PTSD. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health diagnosis at the time of his discharge. The applicant met retention standards at the time of his discharge. Based on a thorough review, at the time of separation the applicant met psychiatric medical retention standards per AR 40-501, Chapter 3, Para 31-37. This does not negate the applicant’s deployments and VA diagnosis and rating for PTSD. However, the VA conducts evaluations based on different standards and regulations. VA examinations can confirm diagnoses and determine if medical conditions occurred while on active duty; however, it does not address whether a medical condition met or failed Army retention criteria or if it was a ratable condition during the period of service. 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. Medical retirement/disability for PTSD or TBI is not warranted. BOARD DISCUSSION: 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, applicant's record of service, and reason for separation. The Board further reviewed the medical reviewer's assessment that the applicant met retention standards at the time of his discharge. Based on a thorough review, at the time of separation the applicant met psychiatric medical retention standards per AR 40-501, Chapter 3, Para 31-37. This does not negate the applicant’s deployments and VA diagnosis and rating for PTSD. However, the VA conducts evaluations based on different standards and regulations. The VA compensates 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. Based on a preponderance of evidence, the Board determined that there is insufficient evidence to support a medical discharge. 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 635-8 (Separation Processing and 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 for Separation) is based on regulatory or other authority and can checked against the cross reference in AR 635-5-1 (Separation Program Designator (SPD) Codes). 3. Army Regulation 635-5-1 (Separation Program Designator 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 or 2-3 of the regulation. Table 2-3 lists for the SPD codes and narrative reasons: * JBK – Completion of Required Active Service per AR 635-200, chap 4 * JGH – Non-Retention on Active Duty per AR 635-200, paragraph 19-12 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 4 (Separation for Expiration of Service Obligation) of the regulation states a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. A Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a charter of service of honorable, unless the Soldier is in entry-level status and service is uncharacterized. b. Chapter 19 (Qualitative Management Program), paragraph 19-12 (Involuntary Discharge), states except as otherwise provided in this section, Soldiers who choose not to appeal the QMP selection for denial of continued service, or whose appeal is denied, will be involuntarily discharged. Soldiers who elect to appeal but fail, without compelling justification, to submit the appeal within the time prescribed, will also be involuntarily discharged. The service of a Soldier discharged under this chapter will be characterized as honorable. 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 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. 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. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities. VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 8. 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. 9. Title 38 U.S. Code 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210012550 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1