IN THE CASE OF: 
BOARD DATE: 21 November 2022 
DOCKET NUMBER: AR20220004136 

APPLICANT REQUESTS: in effect – 
. 
"full" GI Bill benefits 

. 
to change his discharge to a medical separation or retirement 

. 
a personal Board appearance via telephone/video 


APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
. 
DD Form 149 (Application for Correction of Military Record) 

. 
Department of Veterans Affairs (VA) Rating Decision, 29 December 2021 


FACTS: 
1. 
The applicant states he is trying to get his full GI Bill. The only reason he did not finish his contract was because of his sexual assault. He was forced out of the military after he was sexually assaulted. The VA has service connected him for post-traumatic stress disorder (PTSD) and he is hoping to get his full VA educational benefits. He is hoping that his DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects that he was discharged because of his mental health due to his assault. 

2. 
On 3 February 2020, the applicant enlisted in the Regular Army for 4 years. 

3. 
On 4 February 2020, the applicant completed and signed DD Form 2366 (Montgomery GI Bill Act of 1984 (MGIB) – Basic Enrollment) that shows he did not desire to participate in MGIB. The applicant acknowledged he understood the benefits of the MGIB program, and he would not be able to enroll at a later date. 

4. 
The applicant's records did not contain a complete discharge packet; nevertheless, DD Form 214 shows he was honorably discharged from the Army on 26 July 2021, under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, by reason of "condition, not a disability." He completed 1 year, 5 months, and 24 days net active service. Item 18 (Remarks) shows he did not complete his first full term of service and he was not entitled to separation pay. 

5. 
The applicant provides VA rating decision dated 29 December 2021 that shows his service-connected disability ratings for: 

. 
PTSD; claimed as PTSD military sexual trauma sexual assault, adjustment disorder, anxiety condition, depression, eating disorder, insomnia, memory loss, stress disorder – 70 percent 

. 
erectile dysfunction – 0 percent 

. 
left hip strain with trochanteric bursitis and small bone island with limitation of flexion – 10 percent 

. 
lumbosacral strain – 10 percent 

. 
right lower extremity radiculopathy – 10 percent 

. 
right ankle strain with small bone island – 10 percent 

. 
right hip strain with trochanteric bursitis and small bone island and limitation of flexion – 10 percent 

. 
left hip strain with trochanteric bursitis and small bone island with impairment of thigh – 0 percent 

. 
right hip strain with trochanteric bursitis and small bone island and impairment of thigh – 0 percent 

. 
right hip strain with trochanteric bursitis and small bone island and limitation of extension – 0 percent 



6. 
On 6 July 2022, the U.S. Army Criminal Investigation Division, Army Crime Records Center provided a memorandum for this case and stated that, a search of the Army criminal file indexes utilizing the applicant's information revealed no records pertaining military sexual assault. They further advised that records at the center are Criminal Investigative and Military Police Reports and are indexed by personal identifiers such as names, social security numbers, dates and places of birth and other pertinent data to enable the positive identification of individuals. 

7. 
The applicant's military personnel record is void of evidence that shows he reported or was treated for military sexual trauma like symptoms or was entered into the disability evaluation system prior to his release from Active Duty. 

8. 
The Department of Veterans Affairs operates under its own separate laws, policies, and regulations. The VA determines the eligibility of Veterans' GI Bill benefits. 

9. 
The fact that the VA granted the applicant a service-connected disability rating for various medical conditions does not prove an error on the part of the Army at the time of his separation. A VA service-connected disability rating does not establish entitlement to a "medical discharge" or "medical retirement" from the Army. The VA awards ratings because a medical condition is "service connected" and affects the individual's civilian employability. Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty. 

Additionally, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

10. 
The Army Board for Correction of Military Records (ABCMR) is not authorized to grant requests for upgrade or change of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. 

11. 
MEDICAL REVIEW: 


a. 
The applicant is applying to the ABCMR requesting in effect to receive his “full” GI Bill benefits and change his discharge to a medical separation or retirement. He contends he was discharged from the Army due to his mental health conditions that resulted from his military sexual trauma (MST). 

b. 
The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) On 3 February 2020, the applicant enlisted in the Regular Army for 4 years; 2) The applicant attended Advanced Individual Training (AIT) at Ft. Gordon in April, 2020 before being stationed at Ft. Sill November, 2020; 3) On 26 July 2021, he was honorably discharged from the Army on 26 July 2021, under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, by reason of "condition, not a disability." 

c. 
The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) and VA’s Joint Legacy Viewer (JLV) were reviewed. 

d. 
The applicant asserts he experienced behavioral health symptoms after experiencing MST while on active service. On 07 September 2020, the applicant attended individual therapy while enrolled in AIT for symptoms related to anxiety, interpersonal problems, and difficulty concentrating. He was also referred for psychiatric medication management. The applicant regularly attended therapy and reported some improvement, but he continued to report behavioral health symptoms of anxiety, depression, difficulty concentrating, occupational and interpersonal difficulties. 

e. 
He was then assigned to Ft. Sill, and he was seen on 28 January 2021 by an outpatient behavioral health provider. The applicant was diagnosed with Adjustment Disorder with depressed mood. He was admitted into an inpatient psychiatric treatment 


facility on 19 February 2021 for suicidal ideation. He was discharged and reengaged in outpatient behavioral health treatment on 02 March 2021. He was seen regularly for occupational and interpersonal difficulties and symptoms of depression and anxiety. On 25 March 2021, the applicant is quoted as saying “the military started paperwork to kick me out, and I’m excited, I don’t want to be in the military anymore.” 
f. 
He was again referred for Emergency Services by his Command on 29 March 2021 for a Panic Attack. The applicant was released the same day and asked to follow up in 24 hours. He denied any suicidal ideation and again was noted to say his “unit is starting the process to have him chaptered.” 

g. 
On 09 April 2021 during a routine individual therapy appointment, the applicant discussed being unsure if he was a victim a sexual assault. He reviewed the incident with his therapist, and he was provided information for SHARP. At that time, the applicant was not certain how he wanted to proceed. The applicant was seen by medical providers on 05 May 2021 in response to his report of sexual assault, which he stated occurred on 04 April 2021. 

h. 
The applicant continued in regular individual therapy and medication management for his symptoms of anxiety, depression, occupational and interpersonal difficulties. The severity of his reported symptoms was inconsistent across different medical and behavioral health providers, but he was not found to be at significant risk of self-harm in his remaining time of active service. He did not discuss increased difficulty related to his sexual assault and remained positive about his upcoming chapter separation, which was initiated prior to his reported sexual assault 

i. 
The Mental Health Status report required for a Chapter 5-17 was unavailable for review However, the mandated Installation Director of Psychological Health’s (IDPH) concurrence with a Chapter 5-17 separation recommendation was completed on 05 May 2021 and available for review. There was concurrence that all required screenings including PTSD, mTBI, depression, and sexual assault had been documented in the electronic medical record and fully considered in the determination for administration separation recommendation. The applicant was found to meet medical retention standards and cleared for administrative action and recommended for a Chapter 5-17 discharge. 

j. 
The conditions listed in AHLTA include Adjustment Disorder with mixed anxiety and depression, Adjustment insomnia, Anxiety Disorder, unspecified, and Other problems related to employment. Since leaving Active-Duty Service, the applicant has been seen at the VA for medical and behavioral health conditions. A review of JLV 


provided evidence the applicant has been diagnosed with PTSD, Anxiety Disorder, Insomnia, and Depression. 
k. 
A review of JLV shows the applicant is 70-percent service-connected for PTSD on 27 July 2021. 

l. 
Based on the available information, it is the opinion of the Agency BH Advisor that the applicant has a mitigating behavioral health condition, PTSD related to MST. However, the applicant has no history of misconduct, and he received an honorable discharge. Also, he was in the process of being separated from the military prior to the report of MST for substantial problems adapting to the Army despite consistent appropriate behavioral health intervention. 


Kurta Questions 
A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant has been diagnosed with the following potentially mitigating BH conditions: PTSD related to MST. 
B. Did the condition exist or experience occur during military service? Yes, the applicant did report sexual trauma to medical providers while on active service. In addition, the VA’s granting of service connection for PTSD (70% Service Connected) establishes it occurred during military service. 
C. Does the condition experience actually excuse or mitigate the discharge? Partially, the applicant did not have a reported history of misconduct while in active service and received an honorable discharge. He did have a lengthy history of difficulty adapting to the Army despite consistent behavioral health intervention to assist him throughout his time in service. His command was in the process of separating him under the provision of a Chapter 5-17 when he reported MST. He was also properly assessed by two licensed and credentialled behavioral health providers to ascertain if this was the appropriate discharge for the applicant. He was cleared for this administrative action, and there is insufficient evidence at this time to support a referral to IDES. 
BOARD DISCUSSION: 
1. 
The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 

2. 
After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, an advisory opinion, and regulatory guidance were carefully considered. Evidence of record shows command was in the process of separating him under the provision of a Chapter 5-17 when he reported MST. The record also shows he was cleared by two licensed and credentialled behavioral health providers for this administrative action. The Board concurred with the advisory official finding there is insufficient evidence at this time to support a referral for consideration of a medical discharge and/or respective benefits. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows a medical discharge was warranted during his period of active service. 

3. 
The Board agreed that the VA provides post-service support and benefits for service connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service connected disabilities. 


Mbr 1  Mbr 2  Mbr 3  
:  :  :  GRANT FULL RELIEF  
:  :  :  GRANT PARTIAL RELIEF  
:  :  :  GRANT FORMAL HEARING  
:X  :X  :X  DENY APPLICATION  

BOARD DETERMINATION/RECOMMENDATION: 
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. 
REFERENCES: 
1. 
AR 15–185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 

2. 
AR 635-200 (Active Duty Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the force while 


providing for the orderly administrative separation of Soldiers for a variety of reasons. Chapter 5, paragraph 5–17 (Other designated physical or mental conditions) provides that, commanders specified in paragraph 1–19 may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (AR 635–40, Disability Evaluation for Retention, Retirement, or Separation) and excluding conditions appropriate for separation processing under paragraph 5–11 (Separation of personnel who did not meet procurement medical fitness standards) or 5–13 (Separation because of personality disorder) that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to — 
. 
Chronic airsickness 

. 
Chronic seasickness 

. 
Enuresis 

. 
Sleepwalking 

. 
Dyslexia 

. 
Severe nightmares 

. 
Claustrophobia 

. 
Other disorders manifesting disturbances of perception, thinking, emotional control, or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired 


3. AR 621-202 (Army Educational Incentives and Entitlements): 
a. 
Paragraph 2-3 (Eligibility) Soldiers who entered active duty for the first time after 30 June 1985. Completed a qualifying term of service. Served more than three years of continuous active duty if the obligated period of service was three or more years. 

. 
reduced from pay or contributed $1,200.00 to the Department of Treasury 

. 
after completion of the qualifying service, the Soldier separates from active duty with a fully honorable discharge 



b. 
Paragraph 2-7 states all eligible Soldiers are automatically enrolled in the MGIB, unless they choose to dis-enroll. DD Form 2366 will be used for this purpose. MGIB dis-enrollment is irrevocable. 


4. 
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 (TBI); 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 to 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. 

5. 
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. 


a. 
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. 

b. 
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 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. 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. 


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