IN THE CASE OF:	  

		BOARD DATE:	  2 March 2010

		DOCKET NUMBER:  AR20090013814 


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 that her honorable discharge from the Louisiana Army National Guard (LAARNG) be changed to a medical discharge.

2.  The applicant states that the type of discharge she was given is not fair.  She contends that since she would not sign a safety contract she was given an administrative discharge instead of a medical discharge.  She also argues that if she was going to be separated or did not meet retention status why was she allowed to reenlist?  Now she has to pay the reenlistment bonus back. 

3.  The applicant provides a memorandum, dated 29 July 2009, from the Office of the Adjutant General, Pineville, Louisiana; a failure to exhaust letter, dated 
4 June 2009, from the Army Board for Correction of Military Records (ABCMR); a letter, dated 1 August 2009, from the Financial Management Service, Birmingham, Alabama; medical records from the Department of Veterans Affairs (DVA); service personnel records; service medical records; and a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) in support of her application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Army from 11 January 1995 to 3 January 1997.  On 4 January 1997, she enlisted in the LAARNG.  She attained the rank of sergeant effective 9 February 2003.  

2.  The applicant was ordered to active duty on 10 February 2003 in support of Operation Enduring Freedom.  She served in Kuwait/Iraq from 24 April 2003 to 10 March 2004 and was released from active duty on 8 April 2004.  

3.  The applicant provided a DVA medical record, dated 13 June 2005, which shows she was diagnosed with Post Traumatic Stress Disorder (PTSD). 

4.  The applicant reenlisted on 1 April 2006 for a period of 6 years and for a $15,000 bonus.        

5.  On 1 July 2007, the applicant was issued a permanent profile of 112113 for PTSD and bilateral shin splints.  Her limitations were that she was unable to deploy to combat due to PTSD and that she was on deployable psychiatric medication, making her nondeployable. 

6.  On 31 July 2007, the applicant was notified that the State Surgeon reviewed medical documents provided by her command and her current physical condition rendered her unfit for retention in the LAARNG.  She was informed that she had the right to appeal this determination to the U.S. Army Physical Evaluation Board (PEB) at Fort Sam Houston, Texas, and that if she desired to appeal she must submit a written request through her chain of command with additional updated medical documents within 30 days of signed receipt. 

7.  On 5 August 2007, the applicant was reduced to private first class for misconduct.  

8.  On 20 August 2007, the applicant did not concur with the medical retention determination and requested that her case be reviewed by the PEB. 

9.  A memorandum, dated 17 October 2007, pertaining to the applicant's medical retention determination appeal states that the Health Services had not received a written request and updated medical documentation to substantiate a change in the decision to discharge her from service. 

10.  On 17 June 2008, the applicant underwent a psychiatric evaluation and was psychiatrically cleared and found fit for duty.  She was diagnosed with dysthymic disorder (history of PTSD symptoms, treated at the VAMC [Veterans Affairs Medical Center].  The psychiatrist recommended that due to applicant’s reported chronic anger and thoughts of harming herself and others, NO access to weapons if she refuses to contract for safety and that administrative separation may be warranted if she refuses to contract for safety.

11.  On 15 August 2008, the applicant was honorably discharged from the LAARNG under the provisions of National Guard Regulation 600-200, paragraph 8-35c(6), for the convenience of the Government. 

12.  In October 2008, the applicant submitted an application to the ABCMR requesting a medical discharge.

13.  In the processing of this case, a staff advisory opinion, dated 3 April 2009, was obtained from the NGB, Chief, Personnel Division.  The advisory opinion points out that the applicant enlisted in the LAARNG in 1996 and served until deploying to Operation Iraqi Freedom as a truck driver.  In February 2003 she was promoted to sergeant and performed satisfactorily in that capacity through deployment and upon her return to the LAARNG.  The applicant's DA Forms 2166-8 (Noncommissioned Officer Evaluation Report) (NCOER) for the periods February 2003 through December 2006 indicate her performance was satisfactory in all aspects.  The applicant was then given a Relief for Cause NCOER and subsequently reduced to private first class in August 2007.  The applicant’s performance continued to decline and she was administratively discharged on 15 August 2008.

14.  The advisory opinion states that records submitted indicate the applicant began seeking counseling and other care for PTSD as early as April 2005.  The assessments indicate substantial symptoms and recommendations that she be  disqualified from military deployments.  However, on 17 June 2008, the applicant was evaluated at the Behavioral Health Clinic, Fort Polk, Louisiana and the record indicates she was “psychiatrically cleared and found fit duty,” and the recommendation was added that “Due to soldier’s reported chronic anger and thoughts of harming self and others, recommend NO access to weapons if she refuses contract for safety.  Administrative separation lAW [in accordance with] AR [Army Regulation] 635-200, may be warranted if she refuses to contract for safety.”

15.  The advisory opinion further states that the record shows a steady decline in the applicant's performance following her deployment and subsequent traumatic incident, leading to her eventual administrative discharge.  It is reasonable to conclude that her behavior is possibly linked to PTSD and as such her discharge should be reviewed for possible service related medical benefits.

16.  The advisory opinion cites Army Regulation 40-501, chapter 3, paragraph 
3, which states, in pertinent part, that Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB as defined in Army Regulation 40-400 and will be referred to a PEB as defined in Army Regulation 635-40 and further in paragraph 31 of the same regulation it states the causes for referral to an MEB 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. 

17.  The advisory opinion also cites Army Regulation 600-8-4, chapter 
2, paragraph 1, which states that LD determinations are essential for protecting the interest of both the individual concerned and the U.S. Government where service is interrupted by injury, disease, or death.  Soldiers who are on active duty for a period of more than 30 days will not lose their entitlement to medical and dental care, even if the injury or disease is found to have been incurred not in LD and/or because of the Soldier’s intentional misconduct or willful negligence, Section 1074, Title 10, United States Code (10 USC 1074).  A person who becomes a casualty because of his or her intentional misconduct or willful negligence can never be said to be injured, diseased, or deceased in LD.  Such a person stands to lose substantial benefits as a consequence of his or her actions; therefore, it is critical that the decision to categorize injury, disease, or death as not in LD only be made after following the deliberate, ordered procedures described in this regulation.

18.  The advisory official recommends that the applicant’s records be reviewed by a Medical Evaluation Board (MEB), that any recoupment of bonus money be suspended pending the results of the review of her discharge, and that a line of duty (LD) investigation be initiated to establish if the applicant’s medical issues are duty related.

19.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  The applicant concurred with advisory opinion on 15 April 2009.

20.  On 4 June 2009, the applicant's October 2008 application was returned without action for failure to exhaust all of her administrative remedies.  She was instructed to petition for a change of her discharge from the LAARNG.  She was also informed that if her case was not resolved to her satisfaction, and if she still felt that an error or injustice existed, she could resubmit her application to the Board with the a copy of the denial of her petition. 

21.  On 29 July 2009, the Office of The State Surgeon reviewed the applicant's petition for change of her discharge and found no regulatory justification to warrant a change in her administrative separation.     

22.  The applicant's current application is dated 10 August 2009.

23.  The applicant provided a letter, dated 1 August 2009, from the Financial Management Service in Birmingham, Alabama which states, in pertinent part, that her unpaid delinquent debt owed to the Department of Defense, Defense Finance and Accounting Service has been referred to the U.S. Department of the Treasury for collection.  According to the records of the Department of Defense, she owes $10,179.69 but with additional charges (applicable fees, interest, and penalties) she owes $13,030.00 as of 1 August 2009.      

24.  Title 10, U. S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of active service and a disability rated at less than 30 percent.  Section 1201 provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant served in Kuwait/Iraq from 24 April 2003 to 10 March 2004.  

2.  The advisory opinion points out that the applicant began seeking counseling and other care for PTSD as early as April 2005 and that the assessments indicate substantial symptoms and recommend disqualification from military deployments.

3.  The applicant was issued a permanent profile of 112113 for PTSD and bilateral shin splints on 1 July 2007.  

4.  The advisory opinion also points out that the record shows a steady decline in the applicant's performance following her deployment and subsequent traumatic incident, leading to her eventual administrative discharge.  It is reasonable to conclude that her behavior is possibly linked to PTSD and as such her discharge should be reviewed for possible service related medical benefits.

5.  Based on the advisory opinion recommendation from the NGB, Chief, Personnel Division, the applicant should be afforded the opportunity to have her medical fitness determined by an MEB/PEB.  In addition, any recoupment of her reenlistment bonus should be suspended pending the results of the review of her medical fitness and a LD investigation should be initiated to establish if the applicant’s medical issues are duty related.




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 offering her the opportunity to undergo a physical evaluation to determine her fitness for retention in the Army:

   a.  by directing the Office of The Surgeon General to contact her and arrange, via appropriate medical facilities, a physical evaluation; and

   b.  if appropriate, by referral to an MEB and an informal PEB.

2.  The Office of The Surgeon General is directed to use appropriate invitational travel orders to accomplish the physical evaluation and, if necessary, the MEB and PEB.

3.  In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.

4.  Any recoupment of her reenlistment bonus should be suspended pending the results of the review of her medical fitness.

5.  An LD investigation should be initiated to establish if the applicant’s medical issues are duty related.

6.  In the event it is determined that the applicant should be medically separated, her honorable discharge from the LAARNG should be voided.

7.  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 individual 
concerned was medically discharged without going through the MEB/PEB process. 



      ____________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)                                         AR20090013814



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings