IN THE CASE OF:	  

		BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110017142 


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 her record to show she was discharged for a combat-related disability incurred in the line of duty.

2.  She states she suffers from post-traumatic stress disorder (PTSD) caused by exposure to indirect artillery fire and to potentially hostile foreign military personnel while mobilized and deployed to Taji, Iraq.  Her PTSD was not evaluated by the Physical Evaluation Board (PEB) nor mentioned in the PEB proceedings.  Her discharge order characterizes the conditions for which she was discharged as not combat related as defined in Title 26, U.S. Code, Section 104, and not received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war.  She is currently employed by the U.S. Army Reserve (USAR) in the Military Technician (MILTECH) program, and the conditions of her employment require her to be a member of the USAR.  If she is medically discharged from the USAR for combat-related injuries she will be allowed to retain her current position.

3.  She provides a:

* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)
* DA Form 199 (PEB Proceedings)
* Psychiatric Medical Evaluation Board (MEB) Consultation
* DA Form 2823 (Sworn Statement)
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* medical record
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* orders

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR on 13 November 1981.

2.  U.S Army Reserve Command Augmentation Unit, Fort McPherson, GA, Orders 09-030-00023, dated 30 January 2009, ordered the applicant to active duty for 400 days in support of Operation Iraqi Freedom with a reporting date of 21 February 2009.  She was ordered to report to the 641st Mobilization Troop Command, Fort Benning, GA, with duty at the Multi-National Security Transition Command – Iraq.

3.  On 9 July 2009, the Landstuhl Regional Medical Center issued Orders 
A-07-918987 attaching her to the Warrior Transition Battalion, Fort Benning, GA.  The orders show the purpose was medical evacuation for continued medical care.  

4.  On 15 July 2009, the U.S. Army Human Resources Command (AHRC), St. Louis, MO, issued Orders A-07-919638 retaining her on active duty for 60 days and assigning her to the Warrior Transition Battalion, Fort Leonard Wood, MO, to complete medical care and treatment.  

5.  On 20 August 2009, AHRC, St. Louis, MO, issued Orders A-08-923322 retaining her on active duty for 358 days and assigning her to the Warrior Transition Battalion, Fort Leonard Wood, MO.  These orders were later amended to retain her on active duty for 716 days.

6.  On 22 April 2010, she was examined by a physician-directed MEB.  

	a.  The MEB diagnosed four conditions that failed to meet retention standards:

* cervical degenerative disk disease
* lumbar degenerative disk disease
* osteoarthritis of the hips
* osteoarthritis of the knees

	b.  The MEB diagnosed 13 conditions that met retention standards:

* mild persistent asthma
* internal derangement of the right shoulder
* epicondylitis of the right elbow
* trochanteric bursitis of the right hip
* choroidal nevus
* tension headaches
* insomnia
* tinnitus
* allergic rhinitis
* varicose veins
* panic disorder
* nicotine dependence
* genetic carrier of hemophilia

7.  Regarding the diagnosis of panic disorder, the MEB Narrative Summary states:

"She has been followed by social work since her return from deployment.  She was referred to psychiatry for evaluation for retention standards for significant symptoms of anxiety.  She was seen by [Dr. T] on 24 September 2009, 17 December 2009 and 26 March 2010.  She improved with treatment after some medication adjustments.  [Dr. T] noted a diagnosis of panic disorder with agoraphobia, and noted that any symptoms of depression had resolved.  He also noted that she meets retention standards for mental health disorders."

8.  A 12-page Psychiatric MEB Consultation, dated 15 September 2010, shows the PEB requested she undergo a thorough psychiatric evaluation.  

	a.  The examining psychiatrist, Dr. D, reviewed her outpatient medical record and selected personnel record documents.  No collateral statements were available, no psychometric testing instruments were clinically indicated or administered for the purpose of the assessment, and a DA Form 7652 (Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement) was not available.

	b.  The report noted she did not seek treatment for panic attacks and PTSD symptoms while serving in Iraq.  Later in the report, Dr. D provided a psychiatric history stating the applicant began experiencing severe, frequent panic attacks on her first day in Iraq and these panic attacks occurred at a rate of two or three times a day when they were at their worst and two or three times a week when they were at their best.  In Iraq, she also developed severe insomnia, markedly decreased energy, interest, motivation, and a tense or possibly depressed mood.  When she returned home, her panic attacks continued and were provoked by being around even a small group of people, being alone, and being exposed to reminders of Iraq.

	c.  Dr. D diagnosed PTSD with an approximate date of origin in March 2008.  He stated the PTSD was incurred while entitled to base pay, did not exist prior to service, and her impairment for further military service was severe.  He also noted she had no psychiatric comorbidities other than anxiety-spectrum illness.  He concluded that she failed medical retention standards defined in Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-33c.

9.  On 13 October 2010, a PEB convened to consider 17 MEB diagnoses.  

	a.  A DA Form 199 shows the PEB found her physically unfit and recommended permanent disability retirement with a combined rating of 50 percent for unfitting diagnoses of:

* chronic thoracolumbar spinal pain due to multilevel degenerative disc disease permanently aggravated by wearing body armor during deployment
* chronic neck pain due to repetitive strain wearing body armor and helmet in addition to playing volleyball during deployment 
* chronic right knee pain due to tricompartmental osteoarthritis with a history of anterior cruciate ligament repair and repair of the medial meniscus
* chronic left knee pain secondary to degenerative arthritis, permanently service aggravated due to repetitive strain injury wearing battle gear in Iraq
* bilateral hip pain due to degenerative arthritis permanently service aggravated by repetitive strain injury from wearing body armor while deployed 

	b.  The PEB found her disability did not result from a combat-related injury as defined in Title 26, U.S. Code, Section 104 (26 USC 104).  

	c.  The DA Form 199 shows the PEB considered revised MEB diagnosis 5 and determined she was not unfit for this condition.  (The available records do not show the specific diagnosis cited as revised MEB diagnosis 5.)  The PEB stated:

"Based on accurate and fully descriptive clinical assessment, with findings sufficiently characteristic to identify the disease and disability, therefore, Soldier meets retention criteria [in accordance with Army Regulation] 40-501 3-33a, b, and c.  The Soldier's records clearly demonstrate successful treatment for anxiety which existed prior to Active Duty service and was exacerbated by combat operations and stressors.  The case file demonstrates successful performance of duty in spite of this condition.  She was treated both prior to deployment and subsequently with satisfactory treatment progress clearly demonstrated.  The mere presence of a condition does not constitute a physical disability in accordance with Department of Defense Instruction (DODI) 1332.38, enclosure 2.1.25."

10.  On 28 October 2010, the applicant indicated she did not concur with the PEB findings and demanded a formal hearing with personal appearance.  She also requested representation by counsel.  The record does not show that a formal hearing took place.

11.  Her complete service medical records are not available for review.

12.  On 21 January 2011, Headquarters, U.S. Army Maneuver Support Center of Excellence, Fort Leonard Wood, MO, issued Orders 021-1316 retiring the applicant due to a permanent disability, effective 14 March 2011.  These orders show her disability:

* was not based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war 
* did not result from a combat-related injury as defined in 26 USC 104

13.  Her record contains correspondence sent to her by the Combat-Related Special Compensation (CRSC) Branch, U.S. Army Human Resources Command.  The correspondence shows her application for CRSC was denied.  It shows the Department of Veterans Affairs (VA) gave her a 70 percent service-connected disability rating for PTSD, but the VA had not "conceded a stressor caused by a specific combat-related event simulating war, or instrumentality of war event."

14.  She provides a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) showing the Director of Logistics, 88th Regional Support Command, Fort McCoy, WI, appointed an investigating officer to review the PEB findings that led to the applicant's retirement.  The investigating officer completed his findings and recommendations on 17 June 2011.  He found, in effect:

	a.  The PEB's report did not mention the diagnosis of PTSD pronounced by the Psychiatric MEB Consultation, which specifically mentioned the source of the PTSD encountered during her tour in Iraq and provided a "definite combat-related connection to the PTSD injury."

	b.  The applicant did not concur with the findings of the PEB and requested a formal hearing to dispute them, which did not occur.  The applicant was advised against such a hearing by her counsel due to his opinion that a hearing would cause her to lose a percentage of the military disability rating she had been assigned.  She did not persist in her request for a hearing due to a compromised emotional condition at the time and a demonstrated lack of support in obtaining a more favorable review and outcome.

	c.  Her PEB report mentioned an anxiety condition she suffered from and was treated for prior to her deployment, but does not mention PTSD.  The anxiety condition was not judged to be combat related or a disability deserving of a rating from the PEB.

	d.  Her physical and psychological injuries separately and independently met the standard to disqualify her from military service.  She agreed that she was no longer capable of military service and did not wish to be reinstated as a Soldier.

	e.  Her employment as a MILTECH required her to be a serving military member of the Army Reserve.  As a result of her military medical discharge, she was subject to release from her MILTECH position within 12 months of her military discharge date.  She was able to perform all of her civilian duties as assigned.  

15.  The investigating officer made the following recommendations, which were approved by the appointing official:

	a.  26 USC 104 defines a combat-related injury as a personal injury incurred as a direct result of armed conflict.  The onset of the applicant's PTSD was caused by exposure to enemy indirect fire and a threat of attack from possible enemy insurgent forces while serving in Iraq during a wartime deployment.  On this basis, it was reasonable to state the causes of her service-disqualifying PTSD were combat related.  

	b.  Her discharge orders cite only physical disability as the basis for discharge, leaving the combat-related psychological injury (PTSD) unacknowledged.  The lack of reference to the PTSD diagnosis, despite written documentation from a military psychiatrist, provides convincing grounds upon which to dispute her injuries are not combat related.

	c.  Should the psychological injury be acknowledged as the justification for, or a contributing factor to, her medical discharge she would be able to be designated as a combat-related injured non-dual status technician by the appropriate civilian personnel office and retained her current position.

	d.  Evidence shows the applicant's medical discharge is inaccurately characterized as not combat related.  The investigating officer recommended any personnel actions regarding her status as a MILTECH be postponed until this evidence can be reviewed by an authority with the power to amend her discharge orders.

16.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, including officer procurement programs, retention, and separation, including retirement.  

	a.  Chapter 3 of this regulation gives the various medical conditions and physical defects which may render a Soldier unfit for further military service.  Many of the conditions listed in this chapter fall below retention standards only if the condition has precluded or prevented successful performance of duty.

	b.  Chapter 3 states performance of duty despite an impairment would be considered presumptive evidence of physical fitness and that a Soldier will not be referred to an MEB or a PEB because of impairment that were known to exist at the time of acceptance in the Army and that have remained essentially the same degree of severity and have not interfered with successful performance of duty.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

	a.  Soldiers who non-concur with the recommendations of an informal PEB may waive a formal hearing and submit a written appeal.  Soldiers who non-concur with the recommendations of an informal PEB may also elect to appear before a formal PEB.  If a Soldier non-concurs with the recommendation of a formal PEB, he or she may submit a rebuttal.  In either circumstance, if consideration of the appeal or rebuttal does not affect the outcome of the PEB, the appeal/rebuttal and the case file are forwarded to the U.S. Army Physical Disability Agency (USAPDA) for review.  

	b.  Based upon a review of the PEB proceedings the USAPDA may take the following actions:

		(1)  Concur with the findings and recommendations of the PEB or make minor changes or corrections that do not affect the recommended disposition of the Soldier or lower the combined percentage rating.

		(2)  Return the case to the PEB for reconsideration, clarification, further investigation, a formal hearing, or other action when the case records show such action is in the best interests of the Soldier or the Army.  A detailed explanation for the reasons for return of the case will be provided to the PEB.

		(3)  Issue revised findings providing for a change in disposition of the Soldier or change in the Soldier’s disability rating.

		(4)  Refer the case to the Army Physical Disability Appeal Board.

18.  DODI 1332.38, Enclosure 2 (Definitions), defines physical disability as any impairment due to disease or injury, regardless of degree, that reduces or prevents an individual's actual or presumed ability to engage in gainful employment or normal activity.  The term "physical disability" includes mental disease, but not such inherent defects as behavioral disorders, adjustment disorders, personality disorders, and primary mental deficiencies.  A medical impairment or physical defect standing alone does not constitute a physical disability.  To constitute a physical disability, the medical impairment or physical defect must be of such a nature and degree of severity as to interfere with the member’s ability to adequately perform his or her duties.

19.  DODI 1332.38 states physical disability evaluation shall include a determination and supporting documentation on whether the member's physical disability compensation is excluded from Federal gross income under 26 USC 104.  It further states a physical disability shall be considered combat-related if it makes the member unfit or contributes to unfitness (emphasis added) and was incurred under any of the following circumstances:

* as a direct result of armed conflict
* while engaged in hazardous service
* under conditions simulating war
* caused by an instrumentality of war



DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not show the PEB erred in its findings and recommendations.

2.  The applicant contends her PTSD was not evaluated by the PEB nor mentioned in the PEB Proceedings.  Her contention is contradicted by the record, which shows the PEB addressed a psychiatric diagnosis referred to as revised MEB diagnosis 5.  

	a.  The PEB noted her records clearly demonstrated successful treatment for anxiety that existed prior to active service and was exacerbated by combat operations and stressors.  

	b.  More importantly, the PEB found she was able to successfully perform her duties in spite of the diagnosed condition.  

3.  The applicant was able to successfully perform her duties in spite of her psychiatric diagnosis; therefore, the PEB properly determined it was not an unfitting condition and not ratable.  There was no reason to make a determination on whether or not the condition was combat related. 

4.  The record shows the applicant non-concurred with the informal PEB findings and recommendations and requested an appearance before a formal PEB.  The applicant states she followed her counsel's advice and decided not to pursue a formal PEB.  Now she believes by making this decision she gave up her access to the extensive appeal process provided in the PDES.  However, there is no evidence showing she was denied due process or that she was coerced into making the decision not to pursue an appeal.  

5.  In view of the foregoing, there is no basis for correcting her record to show she was discharged for combat-related disability incurred in the line of duty.

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)                                         AR20110017142



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110017142



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1