IN THE CASE OF:	   

		BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20110010399  


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be medically retired, effective the date of separation, and placed on the Permanent Disability Retired List (PDRL) with a
50 percent (%) disability rating for post-traumatic stress disorder (PTSD) under the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). 

2.  Counsel states the applicant represents yet another case of a National Guardsman who was federalized, deployed to a war zone, and was discharged suffering from PTSD without being processed through the Physical Disability Evaluation System (PDES).  Counsel summarizes the applicant's military career, including the circumstances of his discharge.  

3.  Counsel provides the applicant's/a:

* 4-page statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 22 January 2004 and Honorable Discharge Certificate
* Army National Guard (ARNG) Current Annual Statement
* Memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 with 15 Years of Service
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 15 February 2006
* Orders
* Post-Deployment Health Assessment
* Line of duty (LOD) Counseling Statement
* VA medical records
* Two VA Rating Decisions
* Service medical records 

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.  With prior service in the Regular Army and the U.S. Army Reserve, on 24 February 1984, the applicant enlisted in the ARNG and served in an active status through 30 April 1990.  Following a period of inactive ARNG service and a civilian break in service, on 30 October 1998, he enlisted in the Mississippi ARNG (MSARNG).  His record shows he served in military occupational specialty 88M (Motor Transport Operator) throughout his career.

3.  His record includes a DD Form 214 showing he served on active duty from 24 January 2003 until he was honorably released from active duty on 22 April 2004.  Item 18 (Remarks) shows he served in Kuwait and Iraq from 11 April 2003 to 2 March 2004.  

4.  On 6 September 2005, The Adjutant General's Office, Joint Force Headquarters, MSARNG, Jackson, MS, issued a memorandum, subject:  Medical Fitness Standards for Retention, informing the applicant he had a medical condition that did not meet medical fitness standards for retention.  The memorandum lists PTSD as the unfitting condition.  He was given two options:

	a.  Accept the findings and be medically discharged with eligibility for non-regular retired pay at age 60 if otherwise qualified.
	b.  Request a non-duty-related Physical Evaluation Board (PEB) to determine his fitness for further military service.  

5.  The applicant requested a delay in making his decision, which was granted.  On 1 February 2006, he elected to accept the findings, and he requested separation from the MSARNG and transfer to the Retired Reserve.

6.  On 2 February 2006, The Adjutant General's Office, Military Department, State of Mississippi, issued Orders 033-060, which discharged him from the ARNG and assigned him to the Retired Reserve effective 15 February 2006.  On the same date, he was notified he was eligible to receive retired pay at age 60 based on 15 years of qualifying service.

7.  His record includes an NGB Form 22 for the period ending 15 February 2006 showing he was honorably discharged under the provisions of National Guard Regulation 600-200, paragraph 8-26j(1), by reason of being medically unfit for retention.  

8.  Counsel provides:

	a.  A DD Form 2796 (Post-Deployment Health Assessment), dated 19 February 2004, showing the applicant reported "still feeling tired after sleeping" during his deployment.  He completed the form on this same date. 

		(1)  He indicated he:

* had not seen anyone wounded, killed or dead
* had not engaged in direct combat where he discharged his weapon
* had felt in great danger of being killed during his deployment
* was not interested in receiving help for a stress, emotional, alcohol, or family problem
* had been bothered "some" by "little or no interest in doing things" and "feeling down, depressed, or hopeless" over the 2 weeks prior to completing the form
* had experienced something so frightening, horrible, or upsetting that, in the past month he had – 

* experienced nightmares about it or thought about it when he didn't want to
* tried hard not to think about it or went out of his way to avoid situations that reminded him of it

		(2)  He reported his health was "good" and listed his deployment-related health concerns as "dust/fumes/insect bites etc."  The reviewing medical provider noted a referral for "eye" and "internal med."  

	b.  Several pages that were taken from the applicant's service medical records, which do not show he was diagnosed with PTSD.

	c.  VA medical records showing:

		(1)  On 14 April 2004, the applicant was evaluated at a VA mental health outpatient clinic for depressive symptoms.  He was diagnosed with an adjustment disorder with mixed emotional features.  The examining psychiatrist noted the applicant's prognosis was good.  He was provided education material regarding emotionally transitioning home, and instructed to return to the clinic only as needed.  

		(2)  On 12 July 2004, he was evaluated again by a VA mental health provider.  He had been diagnosed with PTSD and his chief complaint was that he had "been a little stressed out."  He reported staring into space and being teased by coworkers about "going off."  He reported having been "bombed at Samara Iraq."  He stated he had "never seen an explosion, but one of [his unit's] large tractors was torched."  He reported not wanting to be around people, that he was getting no sleep, and that he had seen bodies of dead Iraqis.  He stated he felt very depressed and the provider noted he was tearful throughout the interview.  

		(3)  The applicant has continued to receive treatment for PTSD from the VA.

	d.  The first page of an AGO Form 4970-3-R, dated 8 January 2005, which shows the applicant reported to the MSARNG that he was being treated for depression.  The purpose of the form was to request information from his medical provider on any physical limitations caused by his condition or made necessary by his treatment.  The MSARNG officer who submitted the request entered a partial physical profile showing a rating of "1" for "S" (psychiatric).  The available page does not show who completed the form.  The respondent checked "No" to questions regarding the applicant's ability to perform prolonged strenuous activity, perform heavy lifting, functioning in extreme hot or cold climates, and consuming field rations for extended periods of time.  The respondent indicated the applicant's physical limitation was temporary and he should be released to full duty in 12 months.  

	e.  Two VA Rating Decisions:  

		(1)  The first, dated 28 April 2010, shows the applicant's 0% service-connected disability rating for PTSD with alcohol dependence was increased to 30% effective 23 April 2004.  The rating was changed in response to a Notice of Disagreement from the applicant on 1 September 2009.  

		(2)  The second, dated 3 December 2010, shows a 30% service-connected disability rating for PTSD with alcohol dependence was increased to 50% effective 13 April 2005.  The rating was changed in response to the applicant's appeal of the previous rating.  

9.  On 1 June 2012, during the processing of this case, the Chief, Personnel Policy Division, NGB, provided an advisory opinion.  

   a.  The advisory official recommended approval of the applicant's request provided the following steps are accomplished:

		(1)  A Medical Evaluation Board (MEB) reviews the applicant's medical records for disability evaluation processing and make a recommendation to a PEB to determine his fitness.  

      (2)  If a determination of fitness cannot be made by the MEB/PEB based on his medical records, the Office of the Surgeon General (OTSG) should contact the applicant, schedule an evaluation, generate travel orders, and reinstate him.
      
      (3)  If a determination is made that the applicant should have been separated under the PDES, the advisory official recommends these Proceedings serve as the authority to:
      
* void the applicant's administrative discharge
* issue the applicant the appropriate disability separation retroactive to his original ARNG separation date
* pay him all back pay and allowances less any entitlements already received

	b.  The advisory official notes the applicant received a 30% service-connected disability rating from the VA effective 23 April 2004, which suggests he was suffering from PTSD while on active duty as well as while serving with the MSARNG.  After consultation with the Chief, Surgeon General's Office, NGB, it was determined that the absence of a permanent profile and lack of evidence of an MEB having been conducted "nullifies the reason the Soldier was discharged."  The MSARNG has indicated they have no additional information to provide.
   c.  The advisory official notes the State does not concur with his recommendation.  A copy of an e-mail, dated 22 May 2012, was provided from the Deputy Chief of Staff for Personnel (DCSPER), MSARNG.  The DCSPER has been provided a copy of the applicant's application and supporting documents.  The DCSPER stated that, based on the documents available to him, he believes the correct discharge was issued in 2006.

   d.  The advisory official states Department of the Army Personnel Policy Guidance, paragraph 6-7, provides that, to ensure all Soldiers receive appropriate medical care after leaving active duty, commanders must ensure a line-of-duty (LOD) investigation is initiated.  An LOD should be completed at the demobilization station, but may be completed after the Soldier has left active duty.

10.  On 4 June 2012, counsel indicated he agreed with the advisory opinion and requested it be adopted by this Board.

11.  National Guard Regulation 600-200 (Enlisted Personnel Management) states, in part, that commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501 (Standards of Medical Fitness).  Commanders who do not recommend retention will request the Soldier's discharge.  When a medical condition was incurred in LOD, the procedures of Army Regulation 600-8-4 (LOD Policy, Procedures, and Investigations) will apply.  Discharge will not be ordered while the case is pending final disposition.  

12.  Army Regulation 135-178 (ARNG and Army Reserve - Enlisted Administrative Separations) states a:

	a.  Discharge will be accomplished when it has been determined a Soldier is no longer qualified for retention by reason of medical unfitness unless the Soldier requests and is–

		(1)  Granted a waiver under Army Regulation 40-501, as applicable.

		(2)  Determined fit for duty under a non-duty related PEB fitness determination.

		(3)  Eligible for transfer to the Retired Reserve.

	b.  Soldier who does not meet the medical fitness standards for retention due to a condition incurred while on active duty, any type of active duty training, or inactive duty training will be processed as specified in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) if otherwise qualified.

13.  Army Regulation 635-40 establishes the Army PDES and 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.  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 his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

14.  Army Regulation 635-40, chapter 4, contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

15.  Army Regulation 40-501 governs medical fitness standards for retention and separation, including retirement.  

	a.  Chapter 7 (Physical Profiling), provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.  

   	(1)  Paragraph 7-3 (Physical Profile Serial System) states four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  
   
   (2)  Numerical designator 1 under a factor indicates that an individual is 
considered to be medically fit with regard to that factor.

	b.  Chapter 10 provides the basic policies, standards, and procedures for medical examinations and physical standards for the ARNG.  Paragraph 10-25 states:

		(1)  In accordance with Department of Defense Instruction 1332.38, members with non-duty related impairments are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits.  Further explanation is available in TAPD-Policy Memorandum #4, Processing Reserve Component (RC) Non- Duty Related Cases.  This policy memorandum outlines the procedures and requirements for processing boards on RC Soldiers with non-duty related impairments who are pending separation for medical disqualification.  Determination of whether a non-duty case is forwarded to the PEB is at the request of the Soldier.  The Soldier will have a completed line-of-duty investigation or a memorandum that notifies him/her of non-duty related findings.  The Soldier may not challenge the PEB findings in person.

		(2)  Soldiers pending separation for injuries or illnesses incurred in the LOD will be processed in accordance with Army Regulation 40-400 (Patient Administration) and Army Regulation 635-40.

16.  The VASRD, section 4.129, provides information regarding mental disorders due to traumatic stress.  Specifically, it states that when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six-month period following the veteran’s discharge to determine whether a change in evaluation is warranted.

17.  The 2008 National Defense Authorization Act, section 3.1, effective 28 January 2008, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the VA.  

18.  In a 17 July 2009 memorandum, the Office of the Under Secretary of Defense (Personnel and Readiness) directed that as a matter of policy, all three BCMRs will apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharged after 11 September 2001 and, in such cases where a grant of relief is appropriate, assign a disability rating of not less than 50% for PTSD unfitting conditions for an initial period of 6 months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence.  It would be inequitable to treat PTSD unfitting conditions differently than any other unfitting conditions.  Therefore, as a matter of equity and policy, provisions of the Department of Defense or Army Regulations or guidelines relied upon by the PEB will not be considered by the ABCMR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication in all cases in which the applicant was discharged on or after 11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  The available records show the applicant was evaluated at a VA mental health clinic and diagnosed with depression prior to REFRAD.  Within the year following his REFRAD, while he was in an active status in the MSARNG, he was diagnosed with PTSD.  

2.  It appears that, as late as 8 January 2005, the MSARNG had not had cause to alter the "S" factor of his physical profile to indicate any limitations.  However, the record shows the MSARNG later determined PTSD made him unfit for further service and it was not duty related.  The basis for this decision is not available, and it is difficult to comprehend in the context of the applicable regulations and the available records.  

3.  The preponderance of evidence indicates the applicant's PTSD may have been duty related, and any doubt should have been resolved by referring him to the PDES.  Notwithstanding the fact that the MSARNG stands by the discharge given to him, the applicant should be afforded the opportunity to be processed through the PDES for a determination of fitness as recommended in the NGB advisory opinion.  

4.  Counsel requests that the applicant be medically retired on the date of separation and placed on the PDRL with a rating of 50% for PTSD under the VASRD.  To do so would be premature.  If warranted based on MEB/PEB findings, the proper authority will direct such action be taken.

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 directing that:

	a.  An MEB review the applicant's medical records and, if appropriate, refer him to a PEB.  

	b.  If a determination of fitness cannot be made by the MEB/PEB based on his medical records, the Office of the Surgeon General will contact the applicant, schedule an evaluation, and generate invitational travel orders.

	c.  If a determination is made that he should have been separated through the PDES, these Proceedings serve as the authority to:
      
* void his administrative discharge
* issue the appropriate disability separation 
* pay him all back pay and allowances less any entitlements already received

2.  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 medically retiring him effective on the date of separation and placing him on the PDRL with a rating of 50% for PTSD.  



      _______ _   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)                                         AR20110010399



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ABCMR Record of Proceedings (cont)                                         AR20110010399



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