IN THE CASE OF:	  

		BOARD DATE:	  22 March 2012

		DOCKET NUMBER:  AR20110017380 


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 correction of item 28 (Narrative Reason for Separation) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired with a disability rating of at least 50 percent.

2.  Counsel states:

* the applicant served in the U.S. Army from 14 August 2001 until his honorable discharge and administrative separation on 8 October 2004
* the applicant's discharge was improper and violated mandatory Army regulations governing the medical evaluation of a Soldier suffering from a disability that interferes with such Soldier's performance
* the applicant's medical and military records establish that he was suffering from post-traumatic stress disorder (PTSD) and paranoid personality disorder while serving on active duty and as a direct result of his service

*	both significantly interfered with the applicant's ability to perform his military responsibilities
*	he was diagnosed on multiple occasions prior to his discharge

* Army regulations require that the applicant should have been referred to a medical evaluation board (MEB) and physical evaluation board (PEB) for proper review of his condition

*	had that occurred, he would have been found unfit for further military service and medically retired with at least a 30-percent disability rating from the Army pursuant to Title 10, U.S. Code, section 1201, and had access to benefits and care to which he is entitled

* the applicant was stationed near Mosul, Iraq, for much of his deployment and served primarily as the .50 caliber machine gunner sitting exposed atop the Avenger low-level air defense system during heavy and near constant combat operations
* the applicant experienced numerous traumatic events in combat – the most troubling and shocking was when his squad was tasked with uncovering and then guarding a mass grave
* the applicant received the Army Commendation Medal with "V" Device for his acts of heroism involving conflict with an armed enemy
* the applicant returned to his duty station at Fort Campbell, KY, in Spring 2004

*	he sought treatment at the Deployment Support Center at Blanchfield Army Community Hospital for nightmares and problems sleeping
*	he reported vivid nightmares of the mass grave and rotting corpses he saw

* the applicant's evaluating physician noted the applicant was anxious, jumpy, mildly depressed, occasionally dissociating and losing time, and that he scored high on the Symptoms of PTSD Scale

*	his physician recommended his referral for mental health treatment to rule out a formal diagnosis of PTSD and to be assessed for medication

* on 7 July 2004, the applicant was seen at Division Mental Health as a self-referral

*	over the next several weeks, he received outpatient treatment at Blanchfield and was prescribed the following medications in an attempt to treat his condition – Paxil (paroxetine), Seroquel (quetiapine), Ambien (zolpidem), and Ativan (lorazepam)



* on 12 July 2004, the applicant suffered a dissociative episode when he hallucinated that Blanchfield was blown up while he was driving in his car

* he reacted to this hallucination by establishing a "checkpoint" where he began to stop and search vehicles in the vicinity of the hospital
*	police were called and he was referred to First Hospital Corporation (FHC) Cumberland Hall Psychiatric Hospital, a local civilian psychiatric hospital
*	the applicant had decreased psychomotor activity, nervous mood and blunted affect, positive thought content for paranoid delusions, and a few recent incidents of visual and auditory hallucinations
*	the physician provided an axis I diagnosis of PTSD, adjustment disorder with depressed mood, and the need to rule out major depressive disorder
*	the physician also gave the applicant an axis IV Global Assessment of Functioning (GAF) score of 29, which corresponds with a serious impairment in judgment and ability to function in almost all areas
*	as a result, the applicant was admitted to the Adult Unit of FHC Cumberland Hall
*	shortly after being admitted, the applicant requested that his doctor be changed because he reminded him of an Iraqi
*	the applicant stated to his physician that he "didn't know whether to talk to him or slit his throat"
*	the applicant remained at FHC Cumberland Hall until 22 July 2004 where he received medical and psychiatric treatment

* the applicant was given a poor prognosis by Dr. D____ L. R____
* the applicant's discharge summary shows Dr. D____ L. R____ diagnosed him with axis I PTSD and axis II paranoid personality and gave him a GAF score of 50

*	his GAF score corresponds with severe symptoms and serious impairment in social, occupational, or school functioning
*	he was released from the hospital with at least seven different medications to treat his PTSD and related symptoms and referred to Blanchfield Army Community Hospital for further treatment

* as a result of his ongoing mental health issues and concerns about his ability to perform his duties, the applicant's superiors determined that he should be discharged without any consultation or input from the applicant


* the applicant regularly reported for his duty posting after his release from FHC Cumberland Hall

*	however, he was not permitted to work – notwithstanding his contemporaneous stated desire for a "quick cure" to his PTSD symptoms so he could continue to serve in the Army
*	while he continued to report to work, he was relegated to sitting around his commander's office as a direct result of the limitations his PTSD symptoms placed on his ability to perform his duties
*	he was not permitted to leave the office unless he was accompanied by another member of his unit to ensure he would not do anything else to "embarrass" his commander or the unit

* the applicant underwent a physical examination on or about 26 August 2004, approximately 1 month after his release from FHC Cumberland Hall

*	in his medical history report the applicant listed problems with his lower back, knee, and mental health issues that caused him to not "feel right in his body and head"
*	the examining physician listed PTSD in the Summary of Defects and Diagnoses, but failed to state whether the applicant was qualified or not qualified for service or refer the applicant to an MEB or PEB

* on 13 September 2004, Major A____ D____, a division social worker, drafted a memorandum documenting the applicant's treatment at Fort Campbell
* on the same date, the applicant received orders reassigning him to a transition center pending his discharge
* following his discharge in October 2004, the applicant immediately filed a disability claim with the Department of Veterans Affairs (VA)

* on 1 February 2005, he was issued a combined disability rating of 80 percent – 70 percent for lumbosacral strain and 10 percent for left and right patellofemoral pain syndrome
* in March 2005, he was granted individual unemployability compensation

* on 17 January 2008, his disability rating for PTSD was increased to 100 percent
* the applicant has been unable to pursue gainful employment or further his education as a direct result of paranoia and other symptoms of PTSD


* in July 2006, the applicant was hospitalized for 5 days to address the exacerbation of his PTSD symptoms
* the applicant was admitted to the psychiatry ward at the La Jolla VA hospital from 8 August to 15 August 2007 due to suicidal intentions

3.  Counsel provides a legal brief with 15 exhibits consisting of the applicant's affidavit, DD Form 214, and documents relating to his medical condition.

 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 enlisted in the Regular Army on 14 August 2001.  He completed training and was awarded military occupational specialty (MOS) 14S (Avenger Crewmember).  The highest rank/grade he attained while on active duty was specialist/E-4.

3.  The applicant's DD Form 214 shows he served in Kuwait/Iraq during the period 1 March 2003 through 3 March 2004.

4.  A Standard Form 600 (Chronological Record of Medical Care), dated 29 June 2004, shows the applicant underwent a post-deployment psychosocial assessment which determined he would be referred to rule out PTSD and assessed for medication.

5.  On 8 October 2004, the applicant was honorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-17, for a physical condition, not a disability.

6.  The applicant's official military personnel file (OMPF) maintained in the interactive Personnel Electronic Records Management System does not contain the facts and circumstances surrounding his discharge, any other military treatment records, or the mental status evaluation which was required for the applicant's separation.  Further, these records were not provided by the applicant or counsel.

7.  On 10 November 2009, the Combat-Related Special Compensation Branch denied the applicant's request for combat-related special compensation.

8.  On 26 October 2010, the Army Discharge Review Board denied the applicant's request for a change to his narrative reason for separation.

9.  Counsel provides a legal brief with 15 exhibits that includes the applicant's affidavit, DD Form 214, medical treatment records, and rating decisions by the VA.

10.  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 Army 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).

	a.  The objectives of the system 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 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 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board (MEB)
* receive a permanent physical profile rating of P3 or P4 and are referred by an 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 a physical evaluation board (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.

11.  Army Regulation 635-40 establishes the PDES.  It 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.  Paragraph 2-2b provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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

	a.  Paragraph 3-3a provides that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.
	b.  Paragraph 3-3b(1), as amended, provides that an individual must be unable to perform the duties of his or her office, grade, rank, or rating to be found unfit by reason of physical disability.

13.  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.

14.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Section 1203 provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contention that the applicant should have been medically retired was carefully considered.

2.  Although counsel provided documentation showing the VA diagnosed the applicant with PTSD, the applicant's OMPF contains insufficient military treatment records showing a diagnosis of PTSD.  The OMPF does not contain the mental health status evaluation or the facts and circumstances surrounding the applicant's separation and counsel did not provide these documents.

3.  The applicant's post-service physical disability rating by the VA does not mean he was physically disabled while he was serving on active duty and is not grounds for approving his request.

4.  The rating actions by the VA do not demonstrate an error or injustice on the part of the Army.  The VA 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.

5.  The narrative reason for separation used in the applicant's case is correct and was applied in accordance with the applicable regulations.

6.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20110017380



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ABCMR Record of Proceedings (cont)                                         AR20110017380



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