BOARD DATE:	    23 May 2012

		DOCKET NUMBER:  AR20110018523 

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 change his discharge by reason of a “condition, not a disability” to a “physical disability retirement.”  

2.  He states he should have been medically retired due to the severity of his medical condition.  He filed a claim with the Department of Veterans Affairs (VA) and he was granted a disability compensation rating of 50 percent for Post-Traumatic Stress Disorder (PTSD) related to military service.  

3.  He also states he was awarded the Combat Action Ribbon (U.S. Marine Corps award) which concedes his combat exposure.  He believes, in effect, that since he was granted a service-connected disability of 30 percent or more by the VA, he should be entitled to a medical retirement from the Army.  

4.  The applicant provides a copy of his VA Rating Decision letter, dated
9 August 2011. 

CONSIDERATION OF EVIDENCE:

1.  After having 4 years of prior active service in the U.S. Marine Corps, the applicant enlisted in the Regular Army on 16 May 2006.  After completion of training, he was awarded military occupational specialty 88M (Motor Transport Operator).  

2.  His records also show he served in Iraq from 10 March 2007 to 8 May 2008 and from 12 October 2009 to 10 July 2010.  
3.  On 21 July 2010, the applicant underwent a mental status evaluation at the Martin Army Community Hospital, Fort Benning, GA.  The evaluation revealed that during his first deployment to Iraq in 2007, he became chronically depressed and reported two attempts at suicide by overdose of psychotropic medication.  He still managed to complete the 15-month deployment.  

4.  Upon his redeployment, he began to drink heavily.  He was enrolled in the Army Substance Abuse Program, yet he continued to drink heavily after completing the outpatient treatment program.  He reported being depressed during his second deployment in 2009, and about 4 to 5 months into the deployment, anxiety set in along with anger, thoughts of hurting others, and what appeared to have been mild psychosis. 

5.  The mental status evaluation also shows he went to the Combat Stress Clinic in late June 2010 and was psychiatrically evaluated, placed on medication, then was medically evacuated to Landstuhl Regional Medical Center and arrived at Fort Benning, GA on 10 July 2010.  His diagnoses were listed under Axis I and are shown to be:

* Dysthymic Disorder
* Anxiety Disorder NOS (Not Otherwise Specified)
* Alcoholism (by history)
	
6.  The clinical psychologist indicated that the above noted diagnoses did not amount to disability, but may continue to significantly interfere with the applicant's assignment to, or performance of duties at the time and in the future.  He was also screened for PTSD and Traumatic Brain Injury, which both yielded negative results.  The examining clinician noted there were no mental health problems which required disposition through medical channels.  

7.  As a result, his diagnoses met the criteria for an administrative separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, by reason of other designated physical or mental conditions.  This form was signed by a clinical psychologist, Outpatient Mental Health Services, Fort Benning, GA.  There are no other signatures or attached correspondence indicating the diagnoses had been reviewed by the installation Chief of Behavioral Health or his/her equivalent.  

8.  The clinical psychologist also indicated that efforts to rehabilitate or develop the applicant into a satisfactory member of the military were unlikely.  He was mentally responsible, able to distinguish right from wrong, and adhere to the right.  He had the mental capacity to understand and participate in administrative or legal proceedings.  He was psychiatrically cleared for any administrative action deemed necessary by his command.  The confirmation of his diagnoses by the Director, Proponency of Behavioral Health, Office of The Surgeon General (OTSG) is not in the available file.  

9.  On 29 July 2010, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of other physical and/or mental medical conditions not compatible with military service.  He recommended the applicant receive an honorable characterization of service. 

10.  The applicant acknowledged receipt of the separation action.  He indicated he had consulted with legal counsel, and he was advised of the basis for the contemplated separation action and its effect; of the rights available to him and the effect of any action taken by him in waiving his rights.  He voluntarily waived consideration of his case by an administrative separation board, indicated he was making the request of his own free will, and chose not to submit any statements on his own behalf.   

11.  On 18 August 2010, the separation authority approved the separation action under the provisions of Army Regulation 635-200, paragraph 5-17, and directed the applicant receive an honorable characterization of service.  

12.  Accordingly, on 3 November 2010, he was discharged.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of a condition, not a disability.  This form further confirms he completed 8 years, 5 months, and 18 days of creditable active military service.  

13.  There is no indication that the applicant was recommended for entry into the Physical Disability Evaluation System (PDES) or that he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB).

14.  On 9 August 2011, the VA issued a rating decision on the applicant and found him to have service-connected PTSD.  He was granted a 50 percent disability rating effective 4 November 2010.  This document also shows the VA listed the reasons for their decision, in part, as follows:

	a.  On 20 April 2011, the Biloxi VA Medical Center examined the applicant and a diagnosis of PTSD was given.  The examiner noted evidence of depressed mood, anxiety, suspiciousness, panic attacks, sleep impairment, mild memory loss, impaired judgment, disturbances in motivation and mood, flattened affect, and difficulty establishing and maintaining effective work and social relationships. There was gross impairment of thought process.  The applicant's stressors caused intense fear, feelings of helplessness and horror.  He was noted to meet the criteria for PTSD under the provisions of the Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition (DSM-IV) based on the events he experienced, witnessed, or was confronted with during his combat experience in Iraq.  

   b.  On 9 June 2011, he underwent an initial psychiatry evaluation conducted by the VA in Panama City, FL.  The examiner noted the applicant's mood symptoms showed mildly depressed mood, increased irritability, poor sleep initiation and maintenance, decreased interest in pleasurable activities, unreasonable or excessive guilt, fatigued, and decreased concentration.  His anxious symptoms showed frequent panic attacks and frequent intrusive thoughts.  The examiner opined that the applicant's diagnosed PTSD was at least as likely as not by or was a result of the fear of hostile military or terrorist activity.

15.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  Paragraph 5-17 provides guidance for separating Soldiers for other designated physical or mental conditions.  Paragraph 5-17a states, in part, that commanders who are special court-martial-convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  The conditions include other disorders manifesting disturbances of perception, thinking, emotional control, or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.  In cases of Soldiers who are, or have been, deployed to an area designated as imminent danger pay area, the diagnosis of a mental condition not amounting to disability will be reviewed by the installation Military Treatment Facility (MTF) Chief of Behavioral Health or the equivalent, and confirmed by the Director, Proponency of Behavioral Health, OTSG.  

16.  Paragraph 5-17b of Army Regulation 635-200 states, in part, when a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a mental status evaluation in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  Command-directed mental status evaluations will comply with paragraph 1-32e of Army Regulation 635-200 which states this type of evaluation will be performed by a psychiatrist, doctoral-level clinical psychologist, or doctoral-level clinical social worker with necessary and appropriate professional credentials. 

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.  It provides for MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

18.   Army Regulation 635-40 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation, is an indication that the applicant is fit.

19.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities (VASRD).  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

20.  Paragraph 3-32 of Army Regulation 40-501 provides, in part, for mood disorders which include dysthymic disorder (depression).  It states, in part, the causes for referral to an MEB are persistence or recurrence of symptoms resulting in interference with effective military performance.  

21.  Paragraph 3-33 of the same regulation pertains to anxiety disorders.  The causes for referral to an MEB are persistence or recurrence of symptoms resulting in interference with effective military performance. 

22.  The Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition (DSM-IV) provides the following descriptions for the diagnosed conditions as listed on the applicant's mental status evaluation:

	a.  Axis I (Clinical Disorders – Other Conditions That May be a Focus of Clinical Attention) falls under the auspice for reporting all the various disorders or conditions not pertaining to personality disorders and mental retardation.

	b.  Dysthymia Disorder is categorized under the category of mood disorders.  The symptoms are a depressed mood for most of the day, for more days than not, and ongoing for at least two years.  During this time, there must be two or more of the following symptoms: under– or over eating, sleep difficulties, fatigue, low self-esteem, difficulty with concentration or decision making, and feelings of hopelessness.  There can also not be a diagnosis of Major Depression for the first two years of the disorder, and has never been a manic or hypo-manic episode. 

	c.  Anxiety Disorder (NOS) is for coding disorders with prominent anxiety or phobic avoidance that do not meet criteria for any other specified anxiety disorder or having anxiety symptoms about which there is inadequate or contradictory information.  

23.  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 with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

24.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability.  The VA, however, is not required by law to determine medical unfitness for further military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be changed to a physical disability retirement because of his service-connected disability rating for PTSD from the VA.

2.  The veracity of the applicant’s claim that he was exposed to combat is not in question.  The evidence shows he served two tours of duty in Iraq; however, the mental status evaluation performed by the Army specifically noted that he was screened for PTSD in 2010 and the results were negative.  

3.  A clinical psychologist in the Army diagnosed him as having dysthymic disorder, anxiety disorder, and alcoholism, which the clinical psychologist noted did not amount to disability.  It was also noted that these conditions interfered with the performance of his duties and as a result it was recommended he be administratively processed for separation under the provisions of Army Regulation 635-200, paragraph 5-17.  

4.  He was diagnosed with a mood disorder and an anxiety disorder.  In cases of Soldiers who are, or have been, deployed to an area designated as imminent danger pay area, the diagnosis of a mental condition not amounting to disability will be reviewed by the installation Military Treatment Facility (MTF) Chief of Behavioral Health or the equivalent, and confirmed by the Director, Proponency of Behavioral Health, OTSG.  

5.  The evidence shows he had two tours of duty in Iraq, which is an imminent danger pay area and he had over 8 years of active military service at the time he was diagnosed with the disorders.  There is no evidence in the available record which shows these diagnoses were reviewed and confirmed by the Chief of Behavioral Health, Fort Benning, GA and the Director, Proponency of Behavioral Health, OTSG, respectively. 

6.  Army Regulation 40-501 states that Soldiers diagnosed with a mood disorder (dysthymic disorder) and an anxiety disorder which are persistent with a recurrence of symptoms resulting in interference with effective military performance are causes for referral to an MEB.  There is no evidence in the available record that shows he was referred to the PDES for an evaluation by an MEB.   

7.  Instead, his chain of command initiated administrative separation actions for the existence of a condition.  His DD Form 214 shows he was separated under the provisions of Army Regulation 635-200, paragraph 5-17, due to a condition, not a disability on 3 November 2010.  

8.  He provided a copy of his VA Rating Decision, dated 9 August 2011, which shows he was awarded a rating of 50 percent for service-connected PTSD effective the day after his separation from active duty.  The examiners noted that his PTSD occurred from his service in Iraq which ended on 10 July 2010.  It is apparent that the applicant developed the symptoms noted by the VA before his separation from the military.  There is also evidence in the mental status evaluation performed by the Army which shows he experienced anxiety and had intrusive thoughts of hurting others during his deployment to Iraq. 

9.  Notwithstanding the recommendations and actions taken by military officials at his last duty station, he is entitled to a proper medical evaluation.

10.  In view of the foregoing, he should be afforded the opportunity to have his records reviewed through the PDES process.  If after he completes his PDES processing the determination is made that he should have been retired by reason of physical disability, the Defense Finance and Accounting Service (DFAS) should audit his financial record and provide him any back retired pay due as a result based on the percentage of disability awarded.

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:

	a.  the Office of the Surgeon General contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders;

	b.  in the event that the applicant requires an MEB and PEB, the applicant will be afforded all of the benefits normally afforded individuals on active duty who are undergoing an MEB and/or PEB;

	c.  should a determination be made that the applicant should have been separated under the PDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 



2.  The Board further determined that the evidence presented was 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 voiding his discharge and retiring him for permanent disability without undergoing evaluation under the PDES.




      _______ _  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)                                         AR20110018523





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110018523



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1