IN THE CASE OF:	  

		BOARD DATE:	        1 OCTOBER 2009

		DOCKET NUMBER:  AR20080016421 


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:

The applicant defers to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's administrative separation be voided and that he be medically retired due to post-traumatic stress disorder (PTSD) with at least a 50-percent disability rating.

2.  Counsel states, in effect, that the Army wrongly discharged the applicant for a personality disorder and failed to conduct a medical evaluation board (MEBD) and physical evaluation board (PEB) to find him unfit for continued service due to severe PTSD and assign him at least a 50-percent disability rating which would have entitled him to a medical retirement.  Counsel states that the applicant's administrative separation for personality disorder was not supported by his medical records which indicate that he was suffering from PTSD and that PTSD was a more appropriate diagnosis for the applicant and should have been the basis for his discharge.

3.  Counsel points out that the applicant's first tour of duty in Iraq was from March 2003 to February 2004 and that his unit saw intense action on several occasions.  His second tour of duty in Iraq was from March 2005 to February 2006, that his duties included keeping order on the Army base, driving heavy trucks for troop and equipment transport, and assisting the response to insurgent activity.  Assisting the response to insurgent activity, in particular, led to some of the most damaging experiences the applicant faced.  Immediately after returning home from his second deployment the applicant began to experience problems and he complained of anxiety, depression, sleep disturbances, hearing voices, paranoia, and hallucinations, among other things.  On 27 February 2006, an Army physician diagnosed the applicant with recurrent major depression with psychotic features and the applicant was admitted to the hospital and remained there until 10 March 2006.  The applicant was diagnosed on multiple occasions by two doctors and almost all diagnoses were of PTSD and depression.

4.  Counsel states that when the applicant returned to his unit he continued to suffer from psychological problems.  Counsel points out that between 24 April 2006 and 8 May 2006 the applicant was admitted to Pikes Peak Mental Health Center on two occasions and evaluated on approximately 10 separate occasions, that he exhibited the same symptoms from which he had been suffering for the past 2 months, and that a diagnosis of PTSD was present in each report and medical record.  Diagnoses of depression and alcohol and drug abuse were also present in various records.  Counsel indicates that one doctor stated that an "MEBD will probably be facilitated based on additional diagnostics" and that the MEBD process had been started by one doctor.

5.  Counsel states that contrary to all of the reports and medical records during the applicant's two hospital stays at Pikes Peak, the discharge summary from Pikes Peak on 9 May 2006 stated that the applicant did not exhibit signs of PTSD or any other Axis I pathology (other than "frustration tolerance categorized as mood disorder not otherwise specified (NOS)."  Instead, the doctor reported an Axis II diagnosis of mixed personality disorder.  After this report, PTSD is rarely mentioned in the applicant's records despite having been the primary diagnosis for the preceding months.  A report, dated 15 May 2006, summarized various tests that were administered to the applicant.  The doctor stated that one of these tests rendered an invalid profile and that this suggested that the applicant had tried to select answers that indicated psychological problems.  The doctor also stated that the applicant had "a tendency to magnify psychiatric and physical illnesses."  In the diagnostic portion of the doctor's report she listed "mood disorder, NOS" as the Axis I diagnosis and depressive personality disorder with a presence of passive-aggressive personality traits and antisocial personality features under Axis II.

6.  Counsel states that the applicant was discharged from the military on 31 October 2006 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-13, for personality disorder.  Despite this, two Army memoranda from October 2006 state that the reason for separation was both mixed personality disorder and PTSD.  Additionally, a medical record, dated 28 December 2006, listed chronic PTSD as the applicant's Axis I diagnosis and personality disorder as Axis II.  In an electronic mail message, dated 27 December 2006, a doctor provided a summary of the applicant's medical records to another doctor and summarized the applicant's medical history since returning from his second tour.  The doctor concluded by noting an Axis I diagnosis of PTSD and an Axis II diagnosis of "antisocial, passive-aggressive and narcissistic traits."  Counsel further states that the applicant has been diagnosed with PTSD since his discharge and that he was granted disability benefits from the Department of Veterans Affairs (DVA) for PTSD at 50 percent.

7.  Counsel argues that the Army did not follow Department of Defense guidelines when discharging the applicant; that discharge under the provisions of Army Regulation 635-200, paragraph 5-13, was inappropriate because preferred separation methods were available; that if the Army had followed proper procedures the applicant would have been found medically unfit and retired with full benefits; and that current laws would require that the applicant be discharged with at least a 50-percent disability rating.

8.  Counsel also argues that the Army incorrectly discharged the applicant for personality disorder and that the applicant should have been discharged for PTSD, that the applicant's medical records from 2006 support a discharge based on a diagnosis of PTSD not of personality disorder, and that the applicant's medical history before and after his time in the Army does not support a diagnosis of personality disorder.

9.  Counsel concludes that the applicant served his country honorably in Operation Iraqi Freedom and suffered debilitating mental anguish as a direct result of his experience in country.  Had the Army followed its own regulations and Department of Defense directives, it would have evaluated the applicant's PTSD through the prescribed formal process of an MEBD followed by a PEB.  This process surely would have found the applicant unfit for continued service and granted him the medical retirement that he deserved.  In any case, the applicant's medical records indicate that the Army's diagnosis of personality disorder was contrary to the overwhelming evidence and that a diagnosis of PTSD was appropriate.

10.  Counsel provides a 24-page memorandum, dated 26 January 2009 with 68 exhibits outlined on the Table of Contents; a 25-page amended memorandum, dated 19 May 2009, with one exhibit; and a letter, dated 13 February 2009, from a Member of Congress in support of the application.



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 1 October 2002.  He served as a combat engineer in Iraq from 10 March 2003 to 14 February 2004.  He served a second tour in Iraq from 6 March 2005 to 21 February 2006.

2.  On 9 May 2006, the applicant was diagnosed with PTSD and a mixed personality disorder.  On 10 July 2006, he was diagnosed with an adjustment disorder (depression) and a mixed personality disorder.

3.  Discharge proceedings under the provisions of Army Regulation 635-200, paragraph 5-13, for personality disorder were initiated on 18  October 2006.  The applicant waived the opportunity to consult with counsel and he elected not to submit a statement in his own behalf.  The separation authority approved the recommendation and directed that the applicant be furnished an honorable discharge.

4.  On 31 October 2006, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-13, for personality disorder.

5.  A DVA Rating Decision, dated 20 July 2007, shows service connection for PTSD (also claimed as major depression with insomnia and psychotic feature and mood disorder) (50 percent) and for lumbar spine degenerative disc disease (10 percent).

6.  Counsel provided numerous medical records which show the applicant was diagnosed with PTSD prior to his discharge.  Counsel provided two medical reports from clinical psychologists who opined that the applicant was not suffering from a personality disorder at the time of his discharge, but was suffering from severe PTSD.  Counsel also provided medical records which show he was diagnosed with PTSD following his discharge.

7.  In the processing of this case, a staff advisory opinion was obtained from the Senior Medical Staff Officer, Health Policy and Services, Office of the Surgeon General, on 10 June 2009.  The Senior Medical Staff Officer reviewed the records and based on the information available, disagreed with the applicant's administrative separation for a personality disorder under the provisions of Army Regulation 635-200, chapter 5-13, in lieu of him undergoing the MEBD/PEB process for PTSD for the following reasons:

	a.  There is a lack of evidence supporting a personality disorder diagnosis as the applicant had no documented adverse actions or evidence of maladaptive patterns of behavior during the first 4 years of active duty which included two year-long deployments for Operation Iraqi Freedom.  In addition, records noted that he had no nonjudicial punishments or court-martial proceedings and he received awards and decorations indicative of a successful Soldier.  There was limited information provided on his history prior to entering the Army, but no indication of a chaotic development during childhood and adolescence which is a risk factor for the presence of a personality disorder.

	b.  Mood and anxiety disorders with an emphasis on PTSD were mentioned throughout his medical records from February to April 2006 with a diagnosis of personality disorder not becoming prominent until his fourth hospitalization in May 2006.  His treating psychiatrist at each produced an MEBD draft noting significant PTSD-related disability in late April 2006, but there is no subsequent documentation noting why the MEBD/PEB disposition route was not pursued.

	c.  The DVA diagnosed the applicant with PTSD and awarded him disability secondary to psychological trauma incurred while serving on active duty in a combat zone.

8.  The advisory opinion states that based upon the available records, the administrative separation for personality disorder should be expunged and the applicant should undergo a disability evaluation for PTSD as per Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-31.  Based upon the information available in the file, the applicant did not meet retention standards due to the severity of his PTSD symptoms in April 2006.  It is that office's medical opinion that that the applicant should have the opportunity to proceed in the MEBD/PEB process.

9.  On 11 June 2009, a copy of the advisory opinion was provided to the applicant for comment or rebuttal.  On 6 July 2009, counsel requested an extension to respond to the advisory opinion.  On 8 July 2009, a 30-day extension was granted.

10.  On 10 August 2009, counsel responded.  In summary, counsel stated that although the applicant agrees with the recommendation of the Office of the Surgeon General that his administrative separation for personality disorder be expunged from his records, the applicant requests that the Board refrain from requiring him to submit to the MEBD/PEB process, and instead amend his records to reflect a permanent medical retirement with at least a 50-percent disability rating for his unfitting PTSD pursuant to the 17 July 2009 memorandum from the Deputy Under Secretary of Defense.

11.  Counsel states that the applicant disagrees with the recommendation that his erroneous discharge be remedied by having him submit to the MEBD/PEB process and that he agrees that the Army violated its regulations by not having him evaluated by an MEBD and a PEB before he was discharged, but this is not an appropriate avenue of relief 3 years after his discharge.  If the Board insists on putting the applicant through an MEBD and a PEB, due process would require, at a minimum, that the Board correct his records to show he was placed on the Temporary Disability Retired List (TDRL) on 31 October 2006 and given a 50-percent disability rating for his unfitting PTSD with instructions to the PEB to evaluate the current severity of the applicant's PTSD to determine whether a prospective change in the 50-percent rating is appropriate.  The applicant's physical fitness for duty should have been determined before his discharge, that if he were to undergo MEBD/PEB evaluations now, the evaluators would be tasked with determining whether he was fit for duty over 3 years ago, and that it is unlikely that a physical or mental examination of the applicant's current condition would shed light on his condition before he was discharged from the Army.

12.  Counsel states that should the Board reject the applicant's argument that the Board should correct his records to show he was permanently medically retired with at least a 50-percent disability rating in October 2006, the applicant requests that he be placed on the TDRL retroactive to his date of discharge, and scheduled on a priority basis for MEBD/PEB evaluations.  Counsel cited several Army Board for Correction of Military Records decisions wherein relief was granted.

13.  Counsel provided a copy of the 17 July 2009 memorandum from the Deputy Under Secretary of Defense titled, Requests for Correction of Military Records Relating to Disability Ratings for Post-Traumatic Stress Disorder.
 
14.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-13 provides that a Soldier may be separated for personality disorder, not amounting to a disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), that interferes with assignment to or performance of duty.  The regulation requires that the condition is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier's ability to perform duty.  The diagnosis of personality disorder must have been established by a physician trained in psychiatry and psychiatric diagnosis.

15.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states commanders of medical treatment facilities (MTFs) who are treating Soldiers may initiate action to evaluate the Soldier’s physical ability to perform the duties of his or her office, grade, rank, or rating.  The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEBD.

16.  Army Regulation 635-40 states that MEBDs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.

17.  Army Regulation 40-501, paragraph 3-31 (Disorders with Psychotic Features), states that the causes for referral to an MEBD are mental disorders not secondary to intoxication, infectious, toxic, or other organic causes, with gross impairment in reality testing, resulting in interference with duty or social adjustment.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contentions were carefully considered.

2.  Based on the advisory opinion recommendation from the Senior Medical Staff Officer, Health Policy and Services, Office of the Surgeon General, the applicant should be afforded the opportunity to process through an MEBD and a PEB.  It appears the applicant did not meet the criteria for an administrative separation under the provisions of Army Regulation 635-200, paragraph 5-13, as erroneously recommended.  Rather, he met the criteria for referral to the Physical Disability Evaluation System under the provisions of Army Regulation 40-501, paragraph 3-31.

3.  It cannot be determined if the applicant would have met the criteria for a medical retirement or placement on the TDRL at the time of his separation in October 2006.  However, the Army clearly erred by not giving him the opportunity to undergo an MEBD/PEB at the time.  Therefore, it would be equitable to void the applicant's discharge and to show he was placed on the TDRL in October 2006 with a 50-percent disability rating.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  by voiding his administrative separation of 31 October 2006 and showing he was retired by reason of temporary disability by reason of a diagnosis of PTSD on 31 October 2006 and placed on the TDRL effective 1 November 2006; and

	b.  as soon as possible, requiring him to undergo a medical evaluation as directed by the U.S. Army Human Resources Command - Alexandria through the use of appropriate invitational travel orders to accomplish the physical evaluation and, if necessary, the MEBD and PEB; and, if required making all required reviews and approvals subsequent to completion of the physical disability evaluation system process.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing the applicant was medically retired with a 50-percent disability rating.




      ___________XXX______________
       	     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)                                         AR20080016421





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ABCMR Record of Proceedings (cont)                                         AR20080016421



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