IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110001074 


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 correction of his honorable discharge from the California Army National Guard (CAARNG) and as a Reserve of the Army from expiration of his service obligation to physical disability and unfitness for continued duty.

2.  The applicant states:

* he served in Iraq during 2004-2005
* following his return from Iraq, he has suffered from post-traumatic stress disorder (PTSD) and has been under the care of several mental health providers
* he has had 10 mental health evaluations conducted by civilian and Department of Veterans Affairs (VA) mental health care providers, all of whom confirm he suffers from PTSD with severe depression

3.  The applicant continues:

* in August 2010, he underwent a fit-for-duty evaluation (FFDE) at Madigan Army Medical Center (MAMC), Fort Lewis, WA
* the FFDE did not consider the PTSD evaluations by civilian and VA caregivers or communicate with those professionals
* the FFDE did not interview his wife, a licensed clinical social worker (LCSW)
* the FFDE did evaluate and give credence to a skewed written diagnosis completed by a CAARNG physician assistant (PA) who never met or spoke with him [applicant]
* the PA's diagnosis biased the FFDE against him from the very beginning
* FFDE psychiatrists only saw him for 7 hours before rendering an opinion counter to his civilian doctor who had seen him for over 2 years

4.  The applicant provides:

* a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 20 March 2005
* a National Guard Bureau Form 22 (Report of Separation and Record of Service) for the period ending 24 November 2010
* a letter from an embedded therapist for the 649th Engineer Company
* a Standard Form 513 (Consultation Sheet), dated 25 June 2009
* a letter from his psychologist, dated 19 August 2009
* a letter from a clinical psychologist, dated 21 August 2009
* a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 11 September 2009
* a Standard Form 509 (Progress Notes), dated 5 November 2009
* a letter from the VA, dated 18 March 2010
* a VA mental health evaluation, dated 23 April 2010
* a memorandum from the CAARNG State Surgeon, dated 5 May 2010
* two e-mail messages, dated 5 and 14 May 2010
* a memorandum from his company commander, dated 11 June 2010
* a Commander's Request for Mental Health Evaluation, dated 11 June 2010
* a memorandum from the Western Regional Medical Command, dated 5 September 2010
* a Standard Form 600 (Chronological Record of Medical Care), dated 23 September 2010, consisting of the FFDE
* Orders 306-1076 issued by CAARNG, dated 2 November 2010
* a memorandum from the Joint Forces Headquarters, Directorate of Human Resources, National Guard, dated 6 December 2010
* a six-page self-authored letter
* a news article from the Sacramento Bee titled, "Orville Staff Sgt. suffers from PTSD"
* an e-mail message from his company commander, dated 4 October 2010
* a letter from his psychologist, dated 8 October 2010
* an e-mail message to members in his chain of command, dated 15 October 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant was a staff sergeant (SSG/E-6) and a dual-status military technician assigned to the 649th Engineer Company, CAARNG, Chico, CA.

2.  The evidence of record shows the applicant was mobilized and deployed to Iraq with his unit in support of Operation Iraqi Freedom for the period 17 January 2004 through 20 March 2005.  Permanent orders, dated 26 January 2006, issued by the CAARNG show he was awarded the Combat Action Badge (CAB) on 4 November 2004.

3.  The applicant provides an undated letter from a civilian marriage and family therapist who was embedded with his unit.  The therapist stated he began seeing the applicant as a client on a monthly basis in September 2006.  The applicant's reasons for seeking therapy were alcohol abuse and symptoms of PTSD resulting from his Iraq deployment.  The therapist opined that the applicant's alcohol abuse was directly connected to his PTSD and the need to numb his symptoms and memories of traumatic events that took place in Iraq.

4.  A Standard Form 513, dated 25 June 2009, shows the applicant received a psychiatric assessment, presumably at the VA, indicating he had PTSD from combat duty in Iraq from April 2004 through February 2005.  His PTSD placed him at risk for emotional decompensation and impaired performance if ever placed in a combat situation, thus making him non-deployable.  His prognosis was guarded and, while full recovery was possible, it would take a protracted period of time.  The assessment concluded it was more realistic to expect that his symptoms would diminish over time, but always be present to some degree throughout his lifetime.

5.  On an unknown date, the applicant received a DA Form 3349 (Physical Profile) reflecting a psychiatric (S) rating of "4" based on PTSD.  His military medical records and his DA Form 3349 are not available for review.

6.  On an unknown date in 2009/2010, the applicant's unit was once again alerted for deployment, this time to Afghanistan in support of Operation Enduring Freedom.  The alert notification started pre-mobilization processing, including Soldier readiness processing, equipment inspections, and combat-related training prior to movement to the mobilization station.

7.  The applicant provides a letter from a civilian LCSW, dated 19 August 2009.  The LCSW stated she conducted 12 psychotherapy sessions with the applicant from August-December 2008.  In her professional opinion, his symptoms were consistent with single-episode, moderate, major depression disorder and chronic PTSD during the time she worked with the applicant,.  The LCSW further states the applicant met the PTSD diagnosis based on the traumatic events he experienced while he was in Iraq.  The PTSD affected his relationships and other social functioning.  It prevented him from seeking civilian employment in spite of having his Master of Business Administration degree because he has a difficult time trusting civilians and is afraid his symptoms will interfere with his ability to be successful in the civilian world.

8.  The applicant provides a letter from a clinical psychologist, dated 21 August 2009.  The clinical psychologist stated the applicant was seen in conjoint therapy with his then-fiancée from 21 June 2008 through 8 November 2008.  Although the treatment was about relationship issues, several problems came up that involved the applicant's symptoms, including severe anxiety and sleep disturbance, startle responses, flashbacks, and hyper-vigilance from the traumatic experiences he witnessed in Iraq.  The applicant stated he first began experiencing these symptoms after he returned from Iraq.  The applicant indicated it was not until he stopped drinking that he was more aware of the PTSD symptoms.  The clinical psychologist opined that the applicant was suffering from PTSD as a result of his experiences in Iraq.

9.  On 11 September 2009, the applicant's unit conducted a retroactive line-of-duty (LOD) determination for PTSD.  The DA Form 2173 shows the applicant was treated for PTSD symptoms on 22 June 2004 while serving in Iraq.  Item 15 (Details of Accident or History of Disease) contains the entry, "Please see treating psychologist's notes."  Item 30 (Details of Accident) contains the entry, "Please see treating psychologist's notes regarding PTSD."  However, the notes are not attached to the DA Form 2173.

10.  The applicant provides a letter from the embedded therapist, dated 5 March 2010.  He stated the applicant believed his unit would not be conducting mock combat training, but later learned the training was scheduled.  This caused the applicant to begin experiencing PTSD symptoms.  The therapist opined that the applicant's participation in unit training associated with mock combat and the upcoming deployment would cause a relapse and exacerbate his condition.  He highly recommended the applicant be excused from any further participation.

11.  The applicant provides a letter from a staff psychologist at the VA, Chino, CA, dated 18 March 2010, who stated the applicant was diagnosed with PTSD.  He also stated it had come to his attention that the applicant's unit would soon be conducting pre-mobilization training.  He also opined such training would exacerbate the applicant's symptoms and recommended his excusal from participating.

12.  On 23 April 2010, the applicant underwent a command-directed mental health evaluation performed by a VA psychologist.  The psychologist indicated the applicant completed a 12-month tour of duty in Iraq where he performed duties as a supply technician and participated in mounted and foot patrols and house raids.  He was never wounded and had been awarded the CAB.  While in Iraq he was exposed to direct and indirect fire and was present when his lieutenant and other friends were killed.

13.  The VA psychologist indicated the applicant felt highly unmotivated and has problems concentrating and managing routine tasks at home that had led to marital stress.  The psychologist stated:

It is highly likely that this veteran suffers from PTSD with secondary depression as a direct result of combat exposure in Iraq.  There is alcohol abuse beginning in Iraq to self-medicate PTSD symptoms, but the veteran has been clean and sober for 2 years with no other substance abuse or residual impairment noted.  The applicant denied additional traumatic stressors or clinically significant periods of symptom and no other psychiatric diagnosis was indicated.  It is highly likely that this veteran's current job, uniformed, on a military base, is overly triggering for him.  Combat training operations are likely to be even more destabilizing and based on his current mental status, [the applicant] is not recommended for re-deployment or positions of acute work stress.  He is competent to manage funds.

14.  His wife was also present during the evaluation.  She stated the applicant:

* is fearful of falling asleep
* was always restless and easily startled once asleep
* has nightmares or night terrors on a daily basis
* has intrusive memories of combat be triggered by familiar smells or terrain
* becomes extremely anxious in crowds and tends to remain hyper-vigilant
* is constantly scanning his environment
* suppresses anger but his affect is somewhat flat as a result
* avoids most social interaction since leaving Iraq

15.  A memorandum from the Office of the CAARNG State Surgeon, dated 5 May 2010, requested that MAMC conduct an FFDE for the applicant.  The request stated:

	a.  The applicant was evaluated by VA and civilian behavioral health providers.  His record revealed a benign initial presentation that became progressively more severe with time.  However, inconsistencies in his accounts to caregivers suggest feigning and malingering.  Because the applicant is a National Guardsman and a Federal military technician, there was a significant financial gain to be realized from a disability retirement.

	b.  Following his return from Iraq, the applicant completed a baccalaureate degree and master's degree in business administration while he was a full-time, dual-status military technician in the CAARNG with satisfactory performance evaluations.  The memorandum pointed out such achievements appeared incongruent with the subjective reports of difficulty concentrating and significant functional impairment due to depressive symptoms.

	c.  The applicant was granted an out-of network referral and continued psychotherapy with a civilian psychologist in 2009.  The civilian provider recommended that the applicant be excused from all pre-deployment training due to his condition and his slow progress in recovery.

	d.  A review of the applicant's records prompted a downgrade of his physical profile from "S-4" to "S-2" given no significant impairment in his job performance and no episode of acute psychosis noted.

	e.  In the VA psychologist's response to the commander's request for a mental health evaluation, the report stated no background information was available prior to the encounter; however, the applicant had been seen in the VA system in the past and a statement had been prepared.  The VA psychologist added that the applicant's wife, who accompanied him to the mental health evaluation, also provided supplemental background information.  Given the input from his spouse and her prior involvement in this case, the objectivity of the evaluation was questionable.  The request concluded, "Evaluation by a Department of Defense behavioral health provider is requested for final disposition of this case."

16.  A Commander's Statement, dated 11 June 2010, shows the applicant was able to perform the duties of his military occupational specialty (MOS) and he was a good noncommissioned officer (NCO).

17.  A Standard Form 600, dated 23 August 2010, shows a psychiatric FFDE was completed on the applicant at MAMC, WA.  The document indicates the applicant was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible, and met medical retention standards defined in Army Regulation 40-501 (Standards of Medical Fitness).  It was recommended that the applicant be returned to duty as limited by his physical condition, continue to engage in treatment as needed, and continue to follow-up with his primary care provider for medical issues.

18.  A memorandum from Western Regional Medical Command and MAMC, dated 5 September 2010, shows the applicant was found fit for duty with no limitations.

19.  The applicant provides a letter from his psychologist at the Chino VA, dated 8 October 2010.  The psychologist stated he had been treating the applicant for the last 2 years and is qualified to render an opinion regarding the applicant's current fitness for duty for combat.  He disagreed with the psychiatric FFDE decision that found the applicant without impairment that would restrict him from combat duty.  The psychologist reiterated that the applicant was exposed to significant trauma that resulted in a post-traumatic response that persists to this day (i.e., two teammates killed and his best friend seriously wounded).  The psychologist stated, "A diagnostic mental status completed today by me reveals that [the applicant] is currently positive for 18 of 19 criteria for PTSD (Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, diagnostic code 309.81).  Further, during our interview today in which I completed the diagnostic, [the applicant] showed all of the distinct signs of PTSD."

20.  Orders 306-1076 issued by the CAARNG, dated 2 November 2010, show the applicant was honorably discharged from the Army National Guard and as a Reserve of the Army effective 24 November 2010 by reason of expiration of term of service (ETS).

21.  The applicant provides a 6-page self-authored statement in response to his psychiatric FFDE.  The applicant stated, in effect, the evaluator questioned his possession of the CAB and whether he actually served in combat more than once in his evaluation, when in fact he was awarded the CAB and did serve in combat while serving in Iraq.  The applicant felt that statements he and his health care providers made were taken out of context and manipulated to support the FFDE decision.  It noted that there was no traumatic event to be identified, which is a basis for the diagnosis of PTSD.  He stated that his LOD showed a step-by-step account regarding the events he experienced in Iraq, but the document was not used in writing the FFDE.  The applicant stated it was obvious that the FFDE failed to look at the most pertinent documents and facts involved in the case.  Instead, the FFDE evaluator relied on collaterals that would support the case against him and "disprove my mental health condition and to prove that I was a 'so-called liar from your point of view' at the expense of consulting with collaterals who I am connected to, who know me, and who can speak about my integrity, experiences in Iraq, and my mental health condition."

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 3, provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  To be found unfit by reason of physical disability, individuals must be unable to perform the duties of their grade, rank, or rating.

23.  Army Regulation 635-40 states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

24.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his honorable discharge from the ARNG and as a Reserve of the Army by reason of ETS on 24 November 2010 should be changed to a medical discharge.

2.  A physical disability discharge is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform their duties because of a physical disability incurred or aggravated in service.  To be found unfit by reason of physical disability, individuals must be unable to perform the duties of their grade, rank, or rating.

3.  At the same time the applicant was contending significant functional impairment due to PTSD, he was completing his work for a bachelor's and master's degree while at the same time performing the duties of his dual-status employment with the ARNG.  His commander stated the applicant was a good NCO who capably performed the duties of his MOS.

4.  That the VA has awarded the applicant a disability rating is of no consequence to the FFDE.  The VA has neither the authority nor the responsibility for determining physical fitness for military service and awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Therefore, it is not unusual for the Army and the VA, operating under different policies, to arrive at different disability rating decisions.

5.  Based on the above, the applicant has not submitted sufficient evidence to show he was eligible for referral to the Physical Disability Evaluation System or that he was ever unfit by reason of physical disability.

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 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)                                         AR20110001074



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