IN THE CASE OF:	  

		BOARD DATE:	  8 March 2012

		DOCKET NUMBER:  AR20110006083


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 to be medically retired due to post-traumatic stress disorder (PTSD).

2.  The applicant further defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records to show he was medically retired.

2.  Counsel states:

* the applicant suffered from PTSD during his military service
* the applicant's disability should have been referred to the Physical Disability Evaluation System (PDES)
* a medical evaluation board (MEB)/physical evaluation board (PEB) would have found him unfit due to PTSD
* he would have received a disability rating of 50 percent
* the applicant fought as an infantryman in Afghanistan
* on 10 September 2005, the applicant's platoon was attacked by rocket-propelled grenades and small arms fire for 3 1/2 hours and only the applicant and three other Soldiers fought while the remainder of the platoon cowered
* the applicant was sent on landmine clearing missions with nothing but rocks and his boots
* the applicant did not report any mental health issues upon redeployment to Fort Bragg, NC, because he was excited to be home
* the applicant attended Ranger School, but broke his hand and became addicted to painkillers
* medical personnel told the applicant that he might have PTSD and prescribed Zoloft [sertraline]
* the applicant was command-referred for "depression, anger, and suicidal ideation"
* trazadone was added to the applicant's Zoloft prescription

3.  Counsel concludes:

* the applicant was diagnosed with "anxiety disorder – not otherwise specified (NOS)" and discharged for "non-adjustment to Army standards"
* the Department of Veterans Affairs (VA) diagnosed him with PTSD
* on 11 March 2009, the VA rated him as 50-percent disabled for PTSD

4.  Counsel contends the Army violated Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) when the applicant was discharged under the provisions of paragraph 5-17.  Counsel cites:

* Title 10, U.S. Code, section 1169, which states no Regular enlisted member of an Armed Force may be discharged before his term of service expires, except:

* as prescribed by the Secretary concerned or
* by sentence of a general or special court-martial or
* as otherwise provided by law

* Army Regulation 40-400 (Patient Administration), paragraph 7-5(b)

5.  Counsel further contends:

[Applicant] suffered from an anxiety disorder that affected his ability to execute his military duties.  Army Regulation 635-200, paragraph 5-17(b), expressly provides that '[w]hen a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of a duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation in accordance with Army Regulation 40-501 (Standards of Medical Fitness).'  Here, [Applicant] was referred for medical examination because his disorder interfered with the performance of his military duties….He could no longer participate in live-fire exercises, airborne operations, take his own medication, carry a knife, or have access to ammunition or weaponry.

6.  Counsel provides:

* memorandum in support of application
* applicant's declaration
* applicant's spouse's declaration
* appendix A with 30 exhibits

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 applicant's 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 applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 26 July 1980.  On 28 September 2004, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 8 years.  On 3 January 2005, he was discharged from the DEP and enlisted in the Regular Army for 4 years and 4 months on 4 January 2005.  He received infantry training at Fort Benning, GA, followed by basic airborne training.  Upon graduation, he was assigned to the 1st Battalion, 325th Airborne Infantry Regiment, Fort Bragg, NC.

3.  The 1st Battalion, 325th Airborne Infantry Regiment, deployed to Afghanistan with other elements of 2nd Brigade, 82nd Airborne Division, from July 2005 to November 2005.  The applicant's official military personnel file (OMPF) shows he was deployed from 16 July 2005 through 1 November 2005.

4.  In preparation for redeployment from Afghanistan, the applicant completed a DD Form 2796 (Post-Deployment Health Assessment).  On this form, he indicated:

* he went to sick call twice during deployment
* he only complained of diarrhea and stiff joints during deployment
* he did not see anyone "wounded, killed or dead"
* he engaged in combat and fired his weapon
* he was never in or near, or inspected damaged vehicles
* he did not require mental health counseling
* he never felt he was in great danger of being killed
* he never experienced a frightening, horrible, upsetting event such as would cause mental health issues

5.  The applicant was apprehended for driving under the influence of alcohol on 18 February 2006 after he was involved in a motor vehicle accident resulting in property damage and personal injury to a fellow Soldier.  Because he was on alert with the 82nd Airborne Division Ready Brigade (DRB) during this time period, he was prohibited from consuming alcohol by lawful general order.  On 20 April 2006, he was offered and accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for violating a lawful general order on 18 February 2006, to wit:  being impaired (blood alcohol content level of .05).

6.  On 1 June 2006, the applicant was command-referred to the Mental Health Clinic after he stated he was depressed, angry, and suicidal.  A mental status evaluation found him to be:

* behavior – cooperative
* level of alertness – alert and oriented
* mood and affect – anxious and irritable
* thought process – tangential [characterized by oblique or irrelevant answers to questions] and overinclusive [an inability to keep irrelevant elements outside perceptual boundaries]
* thought content – suicidal ideation, no intent or plan; no homicidal ideation
* memory – intact
* insight and judgment – poor

7.  The applicant received a mental health evaluation from competent authority who determined he did not have a psychiatric condition of such severity as to require disposition through medical channels (i.e., MEB/PEB).  He was determined not to have a mental disorder, but to have a long-standing character-behavior disorder.  He was diagnosed in accordance with the Diagnostic and Statistical Manual, Fourth Edition, Text Revision, with:

* axis I – anxiety disorder – NOS
* axis II – antisocial personality
* axis III – deferred to physician
* axis IV – occupational problem
* axis V – Global Assessment of Functioning Score of 55 – moderate impairment in social/occupational functioning

8.  The mental health evaluation rated the applicant's current potential for self-harm and harm to others as "mild."  However, it recommended that the applicant not have access to weapons, ammunition, or participate in live-fire exercises or airborne operations as a precaution.

9.  The applicant's military health records show he was prescribed Zoloft and Desyrel [trazodone] for depression and sertraline hydrochloride for alcohol abuse.

10.  The applicant's OMPF located on the interactive Personnel Electronic Records Management System contains a 30-page administrative separation packet.  It shows:

* on 18 February 2006, he was driving while impaired (DWI) and was involved in a motor vehicle accident resulting in property damage and personal injury
* on 20 April 2006, he accepted NJP for violating a lawful general order by being impaired while on DRB alert status
* in June 2006, he was counseled concerning his performance and his mental health
* in August 2006, he was counseled regarding the proposed administrative separation action
* on 22 August 2006, he received and acknowledged receipt of his proposed discharge under the provisions of Army Regulation 635-200, paragraph 5-17
* in September 2006, the Commander, 2nd Brigade Combat Team, approved the applicant's discharge under honorable (general) conditions

11.  The applicant was discharged under honorable conditions on 26 September 2006 for a “condition, not a disability.”  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served in Afghanistan from 16 July 2005 to 1 November 2005.

3. It also shows he was awarded the:

* National Defense Service Medal
* Afghanistan Campaign Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon
* Parachutist Badge

	b.  It does not show award of the Combat Infantryman Badge and there are no orders in the applicant’s OMPF awarding him the Combat Infantryman Badge.

12.  Following his discharge, the applicant sought treatment through the VA health system.  In March 2007, he was seen at the Long Beach, CA, VA Hospital for his hand, knee, anxiety disorder (NOS), and PTSD.  He reported he became depressed in early 2006 when he was released from Ranger School and began breaking things, including his hand when he punched a wall.  He described insomnia, decreased concentration, feelings of hopelessness, and anhedonia.

13.  In January 2009, the applicant was seen in the VA Eastern Colorado Health Care System, Denver, CO, for a Compensation and Pension (C&P) Service examination.  According to the applicant:

* He was involved in a parachute accident in May 2005 during which he lost consciousness and suffered injuries
* he served in Afghanistan from July to November 2005 and –

* he probably killed the enemy
* he was frequently rocketed and mortared
* he was fearful of Russian landmines
* he was contemptuous of his leadership’s incompetence

* he was not permitted to attend his grandmother’s funeral after being told he could which caused him to “flip out”
* he sought help for addiction to painkillers
* he received military mental health treatment after “flipping out”

14.  The Denver VA provided the following diagnoses following the applicant’s C&P Service examination:

* axis I –

* PTSD, chronic, moderate, “at least as likely as not, 50-percent probability that this condition is associated with combat activity and other experiences during military service”
* mood disorder, NOS, with depressive, intermittent psychotic and hypomanic-like symptoms, “as likely as not, 50 percent probability, that this condition is secondary to the veteran’s” PTSD
* polysubstance and alcohol dependence in full remission



* axis IV –

* chronic physical problems and pain
* difficulty sustaining employment
* limited support system
* geographic relocations

* axis V –


* global assessment of functioning with all axis I diagnoses is 52

15.  A VA Rating decision, dated 11 March 2009, determined the applicant’s disability ratings as follows:

* service connection for PTSD is 50 percent from 18 September 2008
* service connection for broken hand is 0 percent from 18 September 2008
* service connection for left knee is denied
* service connection for right foot is denied
* decision on entitlement to compensation for right knee is deferred

16.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

3. The objectives of the PDES are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected



	b.  Soldiers are referred to the PDES when they:

* no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB
* receive a permanent medical profile of P3 or P4 and are referred by a military occupational specialty (MOS) Medical Retention Board
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, U.S. Army Human Resources Command

	c.  The PDES assessment process involves two distinct stages:  the MEB and the PEB.  The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty.  A designation of “unfit for duty” is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are separated receive a one-time severance payment, while veterans who retire based on disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees.

	d.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier’s office, grade, rank, or rating.

17.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, may arrive at different results for disability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability up or down based upon that agency’s examinations and findings.

18.  Army Regulation 40-400 assigns responsibilities and provides guidance on patient administration in Army medical facilities.

DISCUSSION AND CONCLUSIONS:

1.  Applicant, through counsel, requests to be medically retired due to PTSD because:

* he was deployed in Afghanistan where he fought as an infantryman and experienced psychological trauma
* the VA has diagnosed him as having PTSD rated at 50-percent disabling
* he was command-referred to mental health
* he could not perform his duties as an infantryman

2.  The applicant alleges he should have entered the PDES in accordance with Army regulations which would have found him unfit because of PTSD and retired him with a 50-percent disability rating.

3.  The controlling regulations in physical disability cases are:

a. medical retention standards as outlined in Army Regulation 40-501

   b. the PDES is established by Army Regulation 635-40 which 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 and, if a Soldier is found unfit because of physical disability, provides for disposition of the Soldier according to applicable laws and regulations

4.  The applicant served in Afghanistan; however, there is no evidence he engaged in combat or experienced stressors associated with combat.  The record shows:

* he served in theater from July to November 2005
* he was not awarded the Combat Infantryman Badge
* on his Post-Deployment Health Assessment, he indicated:

* he went to sick call twice during deployment
* he did not see anyone "wounded, killed, or dead"
* he was never in, near, or inspected damaged vehicles
* he never felt he was in great danger of being killed
* he never experienced a frightening, horrible, upsetting event

5.  The applicant's commander did not refer the applicant to mental health because he could not do his job; he was referred as a precautionary measure because of statements he made concerning depression, anger, and suicide.  The applicant had:

* failed ranger training
* been involved in a DWI-related motor vehicle accident
* received NJP for consuming alcohol while on DRB alert status

6.  Competent medical authority determined he did not have a mental disorder, but a long-standing character-behavior disorder.  An affirmative decision was made that he did not require referral to the PDES and that he was medically cleared for administrative separation action.  He was prohibited from acts and activities related to his MOS as a precaution until such time as he was discharged.

7.  The applicant's Army medical records – comprised of a portion of his separation physical and six pages of clinical notes – show he was engaged with Army mental health on several levels, to include polysubstance abuse and depression.  However, these records do not show or suggest that he had PTSD or any other medical condition that would have rendered him unfit for continued service at the time of his discharge.

8.  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.

9.  The applicant was properly discharged under the provisions of Army Regulation 635-200, paragraph 5-17(b).  Competent medical authority determined there was no need to refer him to the PDES for a disability evaluation.



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)                                         AR20110006083



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ABCMR Record of Proceedings (cont)                                         AR20110006083



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