IN THE CASE OF:
BOARD DATE: 27 October 2011
DOCKET NUMBER: AR20100028241
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, a medical discharge.
2. He states, in effect, he believes he should have been medically retired due to chronic post-traumatic stress disorder (PTSD) instead of being discharged under the provisions of paragraph 5-17, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), due to a "condition, not a disability." He also states that there is ample evidence in his military record and his Department of Veterans Affairs (VA) treatment records that show he was diagnosed with chronic PTSD due to his combat duties in Iraq. This was ignored by his command at Fort Polk, LA.
3. He provides:
* Mental Health Evaluations, dated 20 July and 11 October 2006
* Various military medical records
* Separation packet
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
Counsel provides no requests, statements, or additional evidence in support of the applicant's application.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's military records show he enlisted in the Regular Army on 7 June 2002. He completed training and was awarded military occupational specialty 31B (Military Police). He was deployed to Iraq on or about 14 December 2005.
3. A letter from the 10th Combat Support Hospital, Baghdad, Iraq, dated 20 July 2006, shows the applicant was diagnosed with chronic PTSD and major depressive disorder. The recommendation was that he be evacuated to Landstuhl Medical Center, Germany for further evaluation and treatment due to chronic PTSD.
4. A letter from the 204th Military Police Company, Iraq, dated 20 July 2006, shows the applicant was released from the theater (Iraq) for chronic PTSD and major depressive disorder on this date.
5. A Mental Status Evaluation, dated 11 October 2006, shows he was diagnosed with chronic PTSD and psychiatrically cleared for any administrative action deemed appropriate by his chain of command. The examining psychiatrist recommended the applicant be processed for expeditious administrative separation in accordance with Army Regulation 635-200, paragraph 5-17, for other disorder (PTSD).
6. On 30 January 2007, the applicant's unit commander recommended that the applicant be honorably discharged from the Army under Army Regulation 635-200, paragraph 5-17. The unit commander stated the recommendation was based on the applicant's diagnosis of PTSD.
7. On 9 February 2007, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-17, with the issuance of an Honorable Discharge Certificate.
8. On 2 March 2007, he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-17, due to a condition, not a disability, in pay grade E-4.
9. In an advisory opinion, dated 30 September 2011, a staff member of the Office of The Surgeon General (OTSG), Medical Readiness and Standards Division, Health Policy and Service Directorate, stated that the OTSG's psychiatry consultant had reviewed the applicant's medical records. The applicant had a past history of a concussion and PTSD. It was the consultant's opinion that "there was no circumstance to justify an administrative discharge specifically for PTSD." PTSD is a potentially medically disqualifying anxiety disorder as annotated in Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-33 and should be assessed and dispositioned accordingly through medical channels." Thus, "based on the information available, the applicant should be evaluated by a Medical Evaluation Board (MEB) due to a documented history of chronic PTSD secondary to exposure to combat trauma. The presence of Traumatic Brain Injury secondary to combat should also be evaluated due to a history of exposure to explosions and related loss of consciousness."
10. On 3 October 2011, the advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal. On 17 October 2011, the applicant replied that he would undergo the MEB process as he believed that was what should have happened. He also stated that he had been rated 50 percent service-connected for PTSD by the VA and he attached his VA rating decision, dated 9 February 2011.
11. Army Regulation 635-200 sets the policies and procedures for the administrative separation of enlisted Soldiers for various reasons. Paragraph 5-17, provides for the separation of enlisted Soldiers for other designated physical or mental conditions. A commander may approve separation under this chapter on the basis of other physical or mental conditions not amounting to disability and excluding conditions appropriate for separation processing under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 5-11 or 5-13, that potentially interfere with assignment to
or performance of duty. The commander will refer the Soldier for a medical examination and/or mental status evaluation.
12. Army Regulation 635-40 provides for the expeditious discharge of enlisted personnel who, in accordance with Army Regulation 40-501, chapter 3, was not qualified for retention on active duty by reason of physical disability which was either incurred or aggravated during any period in which the member was entitled to basic pay.
13. Army Regulation 40-501 governs the medical fitness standards for retention and separation, including retirement. Paragraph 3-33 states that anxiety, somatoform, or dissociative disorders are causes for referral to an MEB for:
a. Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or
b. Persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or
c. Persistence or recurrence of symptoms resulting in interference with effective military performance.
DISCUSSION AND CONCLUSIONS:
1. The available evidence shows, on 20 July 2006, he was released from Iraq for further evaluation and treatment due to chronic PTSD. On 11 October 2006, he underwent a mental health evaluation. The examining psychiatrist recommended that he be processed for expeditious administrative discharge in accordance with Army Regulation 635-200, paragraph 5-17, for other disorder (PTSD).
2. On 30 January 2007, his chain of command initiated action to discharge him under the provisions of Army Regulation 635-200, paragraph 5-17 and he was discharged accordingly on 2 March 2007.
3. In accordance with Army Regulation 40-501, paragraph 3-33, a diagnosis of chronic PTSD should have been assessed and dispositioned through medical channels and the applicant should have been evaluated by an MEB due to a documented history of chronic PTSD.
4. Based on the advice and recommendation provided in the advisory opinion, it would equitable to provide him the opportunity to undergo an MEB and if appropriate referral to an informal Physical Evaluation Board (PEB).
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. directing the Office of The Surgeon General to contact the applicant and arrange, via appropriate medical facilities, an MEB; and
b. if appropriate, by referral to an informal PEB.
2. The Office of The Surgeon General is directed to use appropriate invitational travel orders to accomplish the MEB, and if necessary, the PEB.
3. In the event that a formal PEB becomes necessary, he 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. In the event a PEB finds that he has a medically unfitting condition and it is compensable, action will be taken to correct his records to show he was appropriately separated effective 2 March 2007.
5. The Board further determined that the evidence presented was 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 correcting his records to show he was medically retired at this time.
_______ _ _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) AR20100028241
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ABCMR Record of Proceedings (cont) AR20100028241
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