IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20110017550 


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, now deceased, requests correction of his records to show that he was found unfit for duty and permanently medically retired due to post traumatic stress disorder (PTSD) rated at 50 percent or higher, as a result of his tour of duty in Iraq.

2.  The applicant states he should have been evaluated for continued fitness by a medical evaluation board (MEB), referred to a physical evaluation board (PEB), and given a diagnosis for PTSD prior to the initiation of separation proceedings.

3.  The applicant provides the following:

* Brief in Support of Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552
* Evidentiary Binder Index
* Army Board for Correction of Military Records Declaration

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s military record be corrected to show that he was found unfit and permanently medically retired due to PTSD rated at 30 percent or higher, as a result of his tour of duty in Iraq.  Counsel requests, in the alternative, that the applicant be retroactively placed on the temporary disability retired list (TDRL) so he can be given the opportunity to be admitted into the disability evaluation system and be properly assessed.

2.  Counsel states the applicant:

* served his country in the U.S. Army for more than 8 years
* served a tour of duty in Operation Iraqi Freedom from April 2003 to April 2004
* personally witnessed numerous killed or wounded U.S. troops and lost at least one close friend who was killed in a convoy ambush
* was exposed to hostile fire with numerous close explosions and participated in convoys that were fired on by enemy combatants
* internalized his emotions and outwardly remained unaffected by these experiences for the benefit of the enlisted Soldiers under him
* returned home depressed and anxious after 12 months in Iraq
* had a hard time adjusting and suffered from terrible nightmares, sleep disorders, flashbacks, and tended to isolate himself from other people
* sought mental health treatment less than 1 year after his return from Iraq and was diagnosed with PTSD
* was treated for PTSD while he was in the Army and his commanding officer was notified the applicant was not believed fit tor active military duty
* was honorably discharged from the Army on 23 May 2005, despite his diagnoses
* was diagnosed with PTSD by the Department of Veterans Affairs (VA)
* should have been evaluated for continued fitness by a MEB and referred to a PEB
* would have been deemed unfit for service for obvious medical reasons, entitling him to disability retirement

3.  Counsel states that the applicant's separation from the Army for personality disorder was not appropriate given the circumstances.  He states that Soldiers must be referred to an MEB by a physician when circumstances require.  He states the Army failed to recognize circumstances requiring referral to an MEB and an MEB would have found the applicant unfit for service following an evaluation under the mental health retention standards of Army Regulation      40-501

4.  Counsel provides no additional evidence.

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.  Subsequent to the receipt of this application and during the processing of this case, the applicant died.  This case is being processed to completion and will be provided to the applicant's estate.

3.  The applicant enlisted in the Regular Army (RA) on 6 November 1996, in the pay grade of E-1.  He completed training as an infantryman.  He remained on active duty through a series of reenlistments and extensions.  He was promoted through the ranks to pay grade E-6.  

4.  He was transferred to Iraq on 10 April 2003.  He returned to the United States on 4 April 2004.

5.  On 19 April 2005, the applicant was admitted to Porter Adventist Hospital in Denver, Colorado, on a 72-hour hold.  He had an episode of absence without leave (AWOL) and was saying "I never do those things; it is not me."  The doctor stated the FSM seemed to be quite worried and scared, and did not want to go back to a tour of duty in Iraq.  The doctor stated the applicant:

* saw some combat where his lost his friend
* could still see his friend’s feet dangling
* saw a 23-year old kid dead on arrival
* saw another buddy whose face and forearm was all bloodied
* was AWOL and speeding and got into trouble with the local police
* was not showing any evidence of auditory or visual hallucinations
* was denying suicidal ideations

6.  The diagnostic impression was as follows:

* Axis I:  Rule out PTSD, Rule out depression with psychotic features
* Axis II:  No diagnosis
* Axis III:  Doubt hypertension
* Axis IV:  Stress secondary to war experience
* Axis V:  Present GAF was 45

7.  The doctor's treatment plan was to start the applicant on Zoloft, 50 milligrams a day for his post traumatic symptoms; and Risperdal to reduce hallucinations and nightmares that he was complaining about.  Once he was stabilized, he probably needed to go in for longer psychiatric treatment to an Army facility, which was discussed with the social worker.

8.  The applicant's medical records show that he continued to be medically treated at Porter Adventist Hospital through 6 May 2005.

9.  On 16 May 2005, the applicant's commander was notified by the U.S. Army Medical Department Activity, Chief, Department of Mental Health that evaluation consisting of a clinical interview and psychometrics indicated that he carried the following diagnoses:

* Axis I:  PTSD – Mild/Moderate
* Axis II:  Personality Disorder, Not Otherwise Specified – Narcissistic Traits
* Axis III:  "See Medical Records"

10.  The psychiatrist commented that the applicant had a chronic situational maladjustment, and a personality disorder incompatible with continued military service.  The psychiatrist psychiatrically cleared the applicant for any action deemed appropriate by his command and stated that he met psychiatric criteria for separation in accordance with Army Regulation 635-200, chapter 5-13.

11.  On 16 May 2005, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 5-13, for personality disorder known as PTSD.  His commander cited the following as the basis for his recommendation:

* he left the Basic Noncommissioned Officer Course (BNCOC) in Virginia and checked into Buckley Air Force Base (AFB), Colorado
* because of his PTSD he was seeking medical help
* he did not request help through the clinic in Virginia or before he left
* he decided to seek help in Colorado, close to his fiancé
* he received in-patient care at Buckley, AFB and then was referred to Porter Adventist Hospital for out-patient care
* he returned to his unit on 9 May 2005 and was seen by the Army psychiatrist and was not satisfied with the counseling he received
* he went to sick call one day and was treated in the emergency room on the following day because his chain of command believed he posed a threat to himself

12.  The applicant was told that his actions were understandable, but were not conductive to the performance of his military duties.

13.  The applicant acknowledged receipt of the notification and he signed a waiver of his right to seek representation by counsel.

14.  The appropriate authority approved the recommendation for discharge on 18 May 2005 and directed the issuance of an honorable discharge.  On 23 May 2005, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 5-13, due to personality disorder.  He had completed 8 years, 6 months, and 18 days of net active service this period.

15.  The applicant provides medical documentation showing that he received treatment from the VA and was awarded a 10 percent service-connected disability rating for PTSD, effective 24 May 2005.  The VA increased his PTSD disability rating to 50 percent, effective 18 March 2009.

16.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, paragraph 13 contains the policy and outlines the procedures for separating individuals for personality disorder, and provides, in pertinent part, that a Soldier may be separated for personality disorder (not amounting to disability) that interferes with assignment to or performance of duty.  The diagnosis of personality disorder must have been established by a physician trained in psychiatry and psychiatric diagnosis.  Separation because of personality disorder is authorized only if the diagnosis concludes that the disorder is so severe that the Soldier’s ability to function effectively in the military environment is significantly impaired.

17.  Army Regulation 40-501 governs the medical fitness standards for enlistment, induction, and appointment; and the medical fitness standards for retention and separation, including retirement.  Chapter 3 pertains to medical fitness standards for retention and separation and gives the various medical conditions and physical defects which may render a Soldier unfit for further military service.  Paragraph 3-35 provides for individuals with personality, sexual and gender identity, or factitious disorders; disorders of impulse control not elsewhere classified; substance-related disorders.  It states:

	a.  These conditions may render an individual administratively unfit rather than unfit because of physical disability.  Interference with performance of effective duty in association with these conditions will be dealt with through administrative channels.

	b.  Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB.  

18.  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 contentions made by the applicant and his counsel have been noted.  The supporting evidence has been considered.

2.  However, according to the available evidence, his condition was not severe enough to process him for discharge or retirement through medical channels.

3.  According to the applicable regulation individuals with personality disorders, which may render an individual administratively unfit rather than unfit because of physical disability, will be dealt with through administrative channels.

4.  At the time of applicant's Mental Status Evaluation, the attending psychiatrist determined that his personality disorder rendered him administratively unfit rather than unfit because of physical disability.  Therefore, discharging him under the provisions of Army Regulation 635-200, chapter 5-13, based on personality disorder was proper.

5.  Soldiers with conditions listed in chapter 3 of Army Regulation 40-501, who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB.  

6.  The VA initially rated the applicant PTSD at 10 percent.  His PTSD was not rated at 50 percent until 18 March 2009.  Based on the available evidence, the FSM's PTSD was mild at the time of his discharge and not considered unfitting for medical standards. 

7.  Counsel's contention that the applicant would have been processed for discharge through medical channels had he been afforded an MEB and a PEB is speculation at best and is without merit.

8.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20110017550





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110017550



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1