IN THE CASE OF:	  

		BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20090011189 


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 his discharge by reason of disability with entitlement to severance pay be voided and that he be reinstated on active duty.

2.  The applicant states that he was discharged by reason of an unfitting medical condition; however, he was misdiagnosed and that he does not, nor did he ever have, the unfitting conditions of obsessive-compulsive disorder (OCD) or attention-deficit hyperactivity disorder (ADHD).

3.  The applicant provides copies of his entire official accession, personnel, medical, security, and dental records, dated on various dates throughout his service.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the U.S. Navy (USN), the applicant's records show he enlisted in the Regular Army (RA) and entered active duty as a an officer candidate on 9 January 2007.  He subsequently completed Officer Candidate School (OCS) at Fort Benning, GA, and he was honorably discharged on 25 April 2007 to accept a commission in the U.S. Army.

2.  The applicant's records further show he was appointed as an RA commissioned officer in the armor branch in the rank of second lieutenant and he executed a DA Form 71 (Oath of Office - Military Personnel) on 26 April 2007.  He was subsequently reassigned to Fort Knox, KY, for completion of the Officer Leadership Basic Course. 
3.  On 31 October 2007, the applicant underwent a medical examination at Ireland Army Community Hospital (IACH), Fort Knox, that noted a diagnosis of OCD and attention deficit disorder.  The attending physician issued the applicant a permanent physical profile that included the number "3" in the "S" (psychiatric) of his PULHES factor of the military physical profile serial system and referred him for a psychiatric evaluation.

4.  On 1 November 2007, the applicant underwent a psychiatric evaluation at IACH, Fort Knox, as a result of his poor performance in training.  After a thorough examination and/or evaluation, he was diagnosed as having OCD  (Axis I:  300.03) manifested by compulsions to check locks and fears of contamination in food; and ADHD (Axis I 314-01) ADHD Combined type as manifested by his exhibiting impulsivity and lack of attention and concentration, inability to focus, careless focus, and forgetting things.  The psychiatrist noted that the applicant's OCD and ADHD rendered him unfit for military service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness).

5.  The term "Axis" refers to the use of the multiaxial system of evaluation outlined in the Diagnostic and Statistical Manual of Mental Disorders (DSMMD).  Axis I refer to clinical disorders and conditions that need clinical attention.  Axis II refers to personality disorders and mental retardation.  Axis III refers to general medical conditions.  Axis IV refers psychosocial and environmental problems. Axis V refers to the global (overall) assessment of functioning.

6.  On 6 November 2007, a medical evaluation board (MEBD) convened at IACH, Fort Knox, and after consideration of the clinical records, laboratory findings, and physical examinations, the MEBD found the applicant had the medical conditions of OCD and ADHD and recommended his referral to a physical evaluation board (PEB).  On 8 November 2007, the applicant indicated that he agreed with the MEBD's findings and recommendation.

7.  On 29 November 2007, an informal PEB convened at Fort Lewis, WA, and found the applicant's condition prevented him from performing the duties required of his grade and specialty and determined that he was physically unfit due to obsessive-compulsive disorder, onset unknown, but service-aggravated by his transfer from the USN to the U.S. Army.  The applicant was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) and was granted a 10-percent disability rating for code 9404.  The PEB also considered his other medical condition (ADHD) and found it to be not compensable, although it may be administratively unfitting.  The PEB recommended that the applicant be separated with entitlement to severance pay, if otherwise qualified.  On 30 November 2007, the applicant concurred with the PEB's findings and recommendations and waived his right to a formal hearing of his case.

8.  On 31 December 2007, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged under the provisions of paragraph 2-24b(3) of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability, with severance pay. This form also shows he completed 8 months and 5 days of creditable active service during this period.

9.  An advisory opinion was obtained on 24 July 2009 in the processing of this case.  The U.S. Army Physical Disability Agency (USAPDA) legal advisor recommended no change to the applicant's military records as the USAPDA was provided with no official evidence that the 2007 MEBD findings were incorrect.  Accordingly, the PEB did not commit any errors in processing the applicant's case.  The advisory official stated that:

	a.  on 6 November 2007, an MEBD found the applicant did not meet the medical retention standards of Army Regulation 40-501 for the condition of ODC and ADHD.  The diagnoses were confirmed by a psychologist, two psychiatrists, and the MEBD approving authority.  The applicant agreed with the findings and recommendation of the MEBD on 8 November 2007;

	b.  after receiving the case, the PEB returned the case to the medical treatment facility (MTF) with concerns about the proper diagnosis and a request for a more specific command performance data about how the diagnosed conditions were affecting his duty performance.  The MTF returned the case to the PEB with additional commander's comments and a reaffirmation that the applicant's OCD was the primary Axis I diagnosis.  Based on this confirmed diagnosis and the commander's comments of inadequate performance of duties, the PEB found the applicant unfit by reason of OCD and recommended his separation with entitlement to severance pay.  He concurred with the findings and recommendations and waived his right to a formal hearing;

	c.  since his separation in 2007, the applicant has obtained several opinions from individual military medical personnel that differ from the official MEBD findings and recommendation.  Based on these new opinions, he believes that the findings and recommendation of the 2007 MEBD were not correct and that he should have never been separated; and

	d.  the PEB does not diagnose conditions; only the MEBD may diagnose conditions for a referral for a fitness determination by the USAPDA.  The new medical opinions offered by the applicant in his petition for correction do not appear to be official Office of the Surgeon General (OTSG) approved MEBD findings.  As such, the USAPDA does not have the authority to arbitrarily find the 2007 MEBD now to be disregarded.  If the OTSG were to officially find that the 2007 MEBD findings and recommendation were incorrect, the USAPDA would have no objection to correcting the applicant's military records as requested.  However, if the OTSG does not officially void the applicant's 2007 MEBD but considers his condition to now be in remission, it is up to the Department of the Army officer accessions as to whether he is eligible to reenter the Army.

10.  On 19 August 2009, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 23 August 2009, the applicant submitted a rebuttal to the advisory opinion and argued that the USAPDA advisory opinion was written by a legal advisor and not by a physician.  He states that he agreed with the MEBD's findings and recommendation only after being told he had no chance of winning an appeal and due to the financial difficulties he would have incurred as a result. He adds that the PEB did not return the case to the command as stated in the advisory opinion; rather, the PEB's initial findings and recommendations were to return him to duty as there was insufficient evidence to discharge him.  However, incorrect medical opinions were fabricated in order to expedite his discharge and that he struggled with the Armor school but he was not provided with sufficient time to study and pass his exams.  He concludes that he does not have the conditions listed on the MEBD and that the medical opinions he provided in support of this argument are written by medical professionals.

11.  The applicant submitted a copy of an evaluation report, dated 4 June 2009, from the Department of Behavioral Health, Headquarters, U.S. Army Medical Department Activity, Fort Benning, in which a military psychiatrist states that he reviewed the applicant's MEBD and PEB proceedings and concluded that the applicant did not have OCD in 2007 and never had this illness.  He added that the applicant should not have been discharged for this invalid diagnosis.  The correct diagnosis based on his symptoms should have been an adjustment disorder with mixed anxiety and depressed mood which is medically acceptable.  He adds that although the applicant had a lifelong diagnosis of learning disorder and attention deficit disorder, he developed successful coping skills that have allowed him to succeed professionally and academically.  He concluded by stating that he was confident the applicant did not suffer from OCD and meets psychiatric standards for induction into the Army.

12.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  It provides for MEBDs, which 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 qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

13.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Department of Defense Instruction 1332.39 and Army Regulation 635-40, appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

14.  Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the military physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator 1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

15.  Psychiatric diagnoses are categorized by the DSMMD, 4th Edition, better known as the DSM-IV.  This manual is published by the American Psychiatric Association and covers all mental health disorders for both children and adults.  It also lists known causes of these disorders, statistics in terms of gender, age at onset, and prognosis as well as some research concerning the optimal treatment approaches.  Mental health professionals use this manual when working with patients in order to better understand their illness and potential treatment and to help third-party players understand the needs of the patient.  The book is typically considered the "bible" for any professional who makes psychiatric diagnoses in the United States and many other countries.  The DSMMD uses a multiaxial or multidimensional approach to diagnosing because rarely do other factors in a person's life not impact their mental health.  It assesses five dimensions, Axis I through Axis V.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge by reason of disability with entitlement to severance pay should be voided and that he should be reinstated to active duty.

2.  PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability.

3.  The applicant sustained a medical condition while attending a military training course at Fort Knox.  He subsequently underwent an MEBD which recommended he be given a PEB.  He agreed with the findings and recommendation of the MEBD.  The PEB subsequently found his OCD condition prevented him from performing his duties and determined that he was physically unfit for further military service.  The PEB recommended his separation with entitlement to severance pay.  The applicant again concurred and waived a formal hearing of his case.

4.  The applicant now believes he should not have been discharged because a subsequent psychiatric evaluation shows he did not have OCD.  However, an evaluation by a different psychiatrist at a later date does not establish error in the rating assigned by the Army's PDES.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.

5.  The applicant's physical disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the findings and recommendations of the PEB.  There is no error or injustice in this case.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________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)                                         AR20090011189



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ABCMR Record of Proceedings (cont)                                         AR20090011189



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