IN THE CASE OF: BOARD DATE: 30 May 2013 DOCKET NUMBER: AR20120015152 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, change of item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect "post-traumatic stress disorder (PTSD)" instead of "personality disorder." 2. The applicant states he has been given a disability rating of 30 percent for PTSD by the Department of Veterans Affairs (VA). 3. The applicant provides page 2 of his VA disability rating decision, undated. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was honorably discharged on 9 February 2007 under the provisions of Army Regulation 635-200 (Personnel Separations – Active duty Enlisted Administrative Separations), paragraph 5-13, by reason of personality disorder. The DD Form 214 he was issued at the time shows he completed 3 years, 2 months, and 28 days of creditable active service, including service in Iraq from 24 January to 16 December 2005. 3. In connection with the processing of this case, on 10 April 2013, an advisory opinion was obtained from the Office of The Surgeon General (OTSG), Director, Health Care Delivery. The advisory official confirms the applicant endorsed PTSD symptoms on both the post-deployment health assessment (PDHA) completed on 6 December 2005 and the PDHA completed on 25 July 2006. He further indicates the PTSD leading to the applicant's PTSD assessment by the VA appears to have their genesis in deployment to a combat zone. The advisory official further confirms, in effect, the applicant's personality disorder separation prevented the U.S. Army from appropriate consideration of the applicant's "boardable" anxiety disorder/PTSD condition. 4. On 16 April 2013, the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. 5. The applicant provides a VA document that confirms he was granted service-connection for PTSD with a disability rating of 30 percent effective 10 February 2007. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Paragraph 3–9 provides guidance for the Temporary Disability Retired List (TDRL). Specifically, it states the TDRL is used in the nature of a "pending list." It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. Requirements for placement on the TDRL are the same as for permanent retirement. The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation. The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208 (10 USC 1208). In addition, the condition must be determined to be temporary or unstable. b. Paragraph 4-17 provides guidance for Physical Evaluation Boards (PEB). Specifically, it states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army. The PEB is not a statutory board. Its findings and recommendation may be revised. 7. The VA Schedule for Ratings Disabilities (VASRD), section 4.129, provides information regarding mental disorders due to traumatic stress. Specifically, it states that when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran's release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the 6-month period following the veteran's discharge to determine whether a change in evaluation is warranted. 8. The 2008 National Defense Authorization Act (NDAA), section 3.1, effective 28 January 2008, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the VA. 9. In a 17 July 2009 memorandum, the Office of the Under Secretary of Defense (Personnel and Readiness) directed that as a matter of policy, all three Boards for Correction of Military Records will apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharged after 11 September 2001 and, in such cases where a grant of relief is appropriate, assign a disability rating of not less than 50 percent for PTSD unfitting conditions for an initial period of 6 months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence. It would be inequitable to treat PTSD unfitting conditions differently than any other unfitting conditions. Therefore, as a matter of equity and policy, provisions of Department of Defense or Army regulations or guidelines relied upon by the PEB will not be considered by the ABCMR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication in all cases in which the applicant was discharged on or after 11 September 2001. DISCUSSION AND CONCLUSIONS: 1. The applicant's request to change the reason for his discharge from personality disorder to PTSD has been carefully considered and found to have merit. 2. The evidence clearly shows the applicant was inappropriately discharged by reason of personality disorder while suffering from anxiety disorder/PTSD. Based on this fact coupled with the OTSG confirmation that the applicant should have been processed through the Physical Disability Evaluation System, and that he was subsequently given the VA disability rating for PTSD, it is concluded the applicant was suffering from an unfitting PTSD condition at the time of his discharge. 3. Under the principles of the 2008 NDAA the applicant's PTSD conditions warrant correction of his record by voiding his 9 February 2007 discharge by reason of personality disorder and to show he was instead separated by reason of disability, temporary on 9 February 2007, and placed on the TDRL on 10 February 2007 at a 50 percent disability rating. 4. Based on available evidence, the U.S. Army Physical Disability Agency (USAPDA) should evaluate the applicant's medical conditions to determine if the applicant's condition 6 months after placement on the TDRL warrants his permanent disability retirement. 5. A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married). This correction of records may have an effect on the applicant's SBP status/coverage. The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately. A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp. The RSO can also assist with any TRICARE questions the applicant may have. BOARD VOTE: __X____ ___X____ ___X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. retroactively placing the individual on the TDRL for a minimum of 6 months at a 50 percent disability rating for PTSD effective the date of his initial separation; b. advising the USAPDA to evaluate the applicant's medical condition based on all available evidence to determine the appropriate final disability rating; and c. paying him any pay and allowances due as a result of these corrections. _______ _ 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. ABCMR Record of Proceedings (cont) AR20120015152 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120015152 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1