IN THE CASE OF:	  

		BOARD DATE:	  24 January 2011

		DOCKET NUMBER:  AR20100014069 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he received a medical retirement.  

2.  The applicant states his medical records clearly indicate that, while in service, he suffered from Post-Traumatic Stress Disorder (PTSD), which significantly interfered with his ability to perform his military responsibilities.  However, the Army never referred him to a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) as required by Army Regulations.  As a result, he was administratively separated instead of being found unfit for further military service. 

3.  The applicant provides, through his counsel, a Memorandum in support of Application, dated 20 April 2010; a notarized affidavit, dated 8 April 2010; a DA Form 4/1 (Enlistment/Reenlistment Document Armed Forces of the United States), effective 28 March 2005; a Chapter 5-17 separation packet; two Department of Veterans Affairs Rating Decision Memoranda, dated 
19 December 2007 and 17 December 2008; his DD Form 214, effective 9 May 2007; and various active duty and post service medical records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's military records be corrected to change the reason for his separation from administrative separation under Army Regulation 635-200 (Enlisted Separations), paragraph 5-17, to reflect a medical retirement with a disability rating of at least 50 percent under Title 10, U.S. Code (USC) 1201, Army Regulation 40-400 (Patient Administration), Army Regulation 40-501 (Standards of Medical Fitness), and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) as a result of a disability that rendered the applicant unfit for further military service.

2.  Counsel states the Army should have discharged the applicant on the basis that he was unfit for further military duty due to his PTSD and not for administrative reasons.  Counsel argues the following:

	a.  Discharge under Army Regulation 635-200, paragraph 5-17 was improper because he suffered from a mental disorder that interfered with his military duties;

	b.  The Army should have referred him to an MEB after he had received multiple in-service diagnoses of PTSD; and

	c.  If the Army had complied with its regulations governing discharge of service members, the Army would have found him unfit for further service.

CONSIDERATION OF EVIDENCE:

1.  On 20 January 1998, the applicant received an uncharacterized discharge from the U.S. Marine Corps for Personality Disorder.  He later enlisted in the Regular Army on 28 March 2005 after obtaining a medical waiver.

2.  The applicant's official medical records were not available for review and all medical information reviewed and discussed was provided by the applicant unless otherwise noted.

3.  On 10 February 2007, while deployed to Iraq, he provided positive responses on his intake questionnaire regarding whether he was thinking of harming himself, harming others, hearing voices, distressed others would harm him, and considering going absent without leave.  He was command-referred to mental health service for:

* evaluation for Chapter separation 
* initial intake and treatment planning 

4.  On 10 February 2007, the military psychiatrist assessed he was suffering from acute psychotic symptoms with suicidal and homicidal ideations.

5.  On 14 February 2007, his military psychiatrist noted the applicant was found to have made significant improvement but stated, "The Soldier has not responded adequately to mental health interventions available in theatre.  He requires evacuation to a higher echelon of care for more definitive and long term assessment and treatment.  It is unlikely that he will be retained in military service if he does not reconstitute with further treatment."  

6.  A Chronological Record of Medical Care, dated 27 February 2007, shows he was evacuated through Landstuhl Regional Medical Center where he was diagnosed with brief psychotic disorder, to Carl R. Darnall Medical Center, Fort Hood, TX.  He reported he had been hearing voices ever since an Improvised Explosive Device (IED) exploded near his vehicle in Iraq in December 2006.  He was found to be in remission for alcohol abuse, suffering from acute PTSD, and single episode major depression.  

7.  On 10 April 2007, he was issued a temporary physical profile for PTSD. 

8.  On 7 May 2007, the company commander notified the applicant that he was initiating action to discharge him under the provisions of Army Regulation
635-200, paragraph 5-17, Other Designated Physical or Mental Conditions.  The commander stated the applicant was diagnosed with PTSD which made him a command liability and impaired overall unit readiness and functioning.  The commander recommended that his service be characterized as honorable.

9.  On the same day, he acknowledged receipt of the proposed action to separate him under the provisions of Army Regulation 635-200, paragraph 5-17 for Other Designated Physical or Mental Conditions, and he indicated that he desired to consult with legal counsel.  He was also advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  He declined to submit statements in his own behalf.

10.  On 7 May 2007, the appropriate authority approved the recommendation to separate him under the provisions of Army Regulation 635-200, paragraph 5-17 for Other Designated Physical or Mental Conditions, directed that he be issued an honorable discharge, and disapproved his transfer to the Individual Ready Reserve.  

11.  On 28 March 2007, he was discharged accordingly.  The DD Form 214 issued at the time of discharge confirms he was separated under the provisions of paragraph 5-17, Army Regulation 635-200, for reasons of Condition, Not a Disability.  He completed a total of 2 years, 1 month, and 12 days of creditable active military.  

12.  In his affidavit he states he was deployed to Camp Taji in support of Operation Iraqi Freedom.  In December 2006 the Humvee he was travelling in was decimated by a roadside IED.  He was the only survivor and suffered facial [trauma].  He was evacuated to Landstuhl, Germany for reconstructive facial surgery to repair the damage caused by the explosive.  Shortly after the IED encounter, he began to experience psychological issues that prevented him from fulfilling his military duties.  His issues included psychological distress, difficulty sleeping, anxiety attacks, intense headaches, vivid nightmares and difficulty concentrating.  He experienced distressing, recurring nightmares of the IED encounter and began to hear voices in his head directing him to hurt or kill someone else.  He contends he has been diagnosed with PTSD on multiple occasions; however, he was never referred to an MEB.  Instead, he received an honorable administrative discharge.  He continues to experience symptoms and has made several trips to the emergency room as a result.  His PTSD has interfered with his ability to live a normal life, limited his social interactions and put a significant strain on his family.  

13.  The applicant submitted post-service medical records which show he has received both emergency room care and outpatient treatment for several conditions to include acute post traumatic stress disorder, depression, suicide attempts, chronic headaches, and anxiety.  These records also show he completed a medical examination as required by his administrative separation; however, the results are not included.

14.  Effective 10 May 2007, the Department of Veterans Affairs granted him a rating of 50 percent for service connection for PTSD, mood disorder and cognitive disorder secondary to combat.  On 17 December 2008, the rating was increased to 70 percent.

15.  A review of his Official Military Personnel File (OMPF) does not show, nor has the applicant provided, any medical documentation related to the treatment of wounds or facial reconstruction performed after his evacuation from theater.  Further, there is no evidence in the available record to indicate he was recommended for or received a valor award for the combat injury he contends he sustained while deployed and which triggered his PTSD. 

16.  Army Regulation 635-40 provides for MEBs 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 Army Regulation 40-501.  Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  
17.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 percent of service and a disability rating at less than 30 percent.

18.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17 provides that:

   a.  Soldiers may be separated for other physical or mental conditions not amounting to a disability under Army Regulation 635-40 that interfere with assignment to or performance of duty.  The regulation requires that the condition interfere with the Soldier's ability to perform duty, and requires that the diagnosis be so severe that the Soldier’s ability to function in the military environment is significantly impaired;
   
   b.  such conditions may include disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties are significantly impaired; and
   
   c.  when a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation.

19.  Title 10, U.S. Code, Chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of a disability incurred while entitled to basic pay.  Sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his DD Form 214 be corrected to show he received a medical retirement.  His counsel argues the applicant's discharge was improper because the Army failed to follow regulatory requirements and refer him to an MEB/PEB for his PTSD.

2.  On 10 February 2007, while serving in Iraq, he was command-referred for a mental evaluation after he stated he was thinking of harming himself, harming others, hearing voices, distressed others would harm him, and considering going AWOL.  The military psychiatrist stated the applicant was suffering from acute psychotic symptoms with suicidal and homicidal ideations.  He was reassessed after five days of treatment and found to have made significant improvement but still suffering from hallucinations and evacuated to Fort Hood, TX.  On 2 March 2007, he was diagnosed with alcohol abuse (in remission), acute PTSD, and major depression (single episode). 

3.  However, two earlier mental status evaluations (on 10 and 14 February 2007) failed to diagnose with applicant with PTSD.  It appears the 2 March 2007 evaluation may have made that diagnosis based upon the applicant's relating an incident that allegedly occurred in December 2006.  During that incident, allegedly the Humvee he was travelling in was decimated by a roadside IED, he was the only survivor and suffered facial [trauma], and he was evacuated for reconstructive facial surgery to repair the damage caused by the IED.  However, there is no evidence of record, and he provided none, to corroborate the IED incident or the reconstructive facial surgery required because of it.

4.  The record shows his chain of command initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17, for Other Designated Physical or Mental Conditions.  Although his commander did note that the reason for the proposed action was that he had been diagnosed with PTSD, again, only the one mental status evaluation made that diagnosis.  However, again, only one of the three mental status evaluations indicated he had PTSD.  He was honorably discharged in accordance with Army Regulation    635-200, paragraph 5-17 (Condition, Not a Disability) on 9 May 2007.  

5.  The applicant and his counsel argue a diagnosis of PTSD required the applicant be processed through the Physical Disability Evaluation System.  Although the applicant was diagnosed with acute PTSD that alone does not signify the applicant was unfit.  His official medical records are not available and he did not provide sufficient evidence to show his acute PTSD diagnosis (if based upon something other than his affidavit with his description of uncorroborated events), along with his other medical conditions, warranted consideration by a medical evaluation board or a physical evaluation board.  

6.  The VA awarded him a service connected disability rating of 70 percent for PTSD; however, an award of a VA rating does not establish entitlement to medical retirement or separation.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service-connected.    

7.  Based on the available evidence, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

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.




      _______ _   ___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)                                         AR20100014069





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ABCMR Record of Proceedings (cont)                                         AR20100014069



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