IN THE CASE OF:	  

		BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110020928 


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 her honorable discharge from the U.S. Army Reserve (USAR) for being medically unfit for retention be revoked and she be reinstated in the USAR for the purpose of being processed through the Army Physical Disability Evaluation System (PDES). 
   
2.  The applicant states:

	a.  she served in the military for over 14 years.  During this time she was deployed twice and earned various awards to include the Combat Action Badge and the Bronze Star Medal.  

	b.  during her deployments she sustained combat related injuries, to include Post Traumatic Stress Disorder (PTSD), for which she is now service-connected by the Department of Veterans Affairs (DVA).  As a result of these injuries, she was separated from the service and received an honorable discharge. 

	c.  she is not disputing the characterization of her discharge.  It is her contention that her election of it was invalid and therefore in error.  At the time of her election, her PTSD symptoms and medication side effects rendered her bereft of any insight or judgment of what she was doing.  She was not of sound mind when she made this election.  In fact, she was hospitalized during the time frame.  She indicates her counseling therapist opined about her "clouded" cognitive and decision making capabilities during the time of her election.  Her commanding officer opined she was under duress and not of sound mind to sign any military or legal documents at the time of her election.
	d.  further eroding her insight and lack of comprehension of her election of an honorable discharge, was the fact her rear detachment failed to provide her with any information, counseling, or warning about the consequences of her election in violation of chapter 17 (Instruction in benefits of an honorable discharge) of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  

   e.  her commanding officer reported that the rear detachment failed to follow the proper protocols to ensure she was taken care of; that a document trail should have been made regarding her frame of mind at the time she signed the documents regarding discharge from the military; and that she was failed by her rear detachment.  She is not alleging any malicious intent on the part of her rear detachment but the fact remains that it did fail and that this failure clearly violated the Instruction of Benefits on an honorable discharge outlined in chapter 17 of Army Regulation 635-200.  The language of chapter 17 mandates she should have been advised about the possible effects of the various certificates on reenlistment, civilian employment, veterans' benefits, and related matters.  It is her contention that the term "related matters" includes her right to and the benefits that could accrue from being processed through the Army Physical Disability Program.  She pointed out that item 2 of her election of options mandated that she would be provided with her MEB/Physical Evaluation Board (PEB) rights but these rights were never provided.

	f.  the evidence shows her election of the discharge was invalid and in error because the election was made while she was not of sound mind due to her PTSD and medications and without any instruction about the consequences of her election.  An injustice has resulted from these errors in that she unknowingly forfeited her right to be processed through the Army PDES. 

3.  The applicant provides:

* Undated letter from her therapist
* Letter, dated 15 August 2011, from her commanding officer
* Election of option form
* DVA and service medical records

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR on 20 April 1992.  She was ordered to active duty on 23 August 2005 in support of Operation Iraqi Freedom.  She served in Kuwait/Iraq from 12 November 2005 to 23 August 2006.  She was promoted to staff sergeant on 22 April 2006.  She was released from active duty on 1 October 2006 and transferred to the USAR.

2.  She was ordered to active duty on 18 April 2008 in support of Operation Iraqi Freedom.  She served in Iraq from 26 June 2008 to 11 April 2009.  On 30 June 2009, she was released from active duty and transferred to the USAR.

3.  She provided a DVA Rating decision, dated 16 April 2010, which shows she was granted service connection for PTSD (50%) and lumbar radiculopathy, right lower extremity (20%) effective 1 July 2009.  She was granted entitlement to the 100% rate effective 1 July 2009 because she was unable to work due to her service connected disabilities.   

4.  Orders show she was ordered to active duty on 5 May 2010 for mobilization for Operation Iraqi Freedom.

5.  A DA Form 3349 (Physical Profile), dated 11 May 2010, shows the applicant was issued a temporary profile "3" for PTSD and depression.  The preparing official found she was non-deployable.

6.  She was notified that she was medically disqualified for continued service in the USAR and she was offered options relating to her medical condition.  She was afforded the following options:  

	a.  request reassignment to the Retired Reserve;

	b.  if she had at least 15 but less than 20 qualifying years of service for retired pay purposes, request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60;

	c.  request an honorable discharge from the USAR;

	d.  request a MEB (duty related) to review her medical records for a final determination about her medical fitness for retention; or

	e.  request an informal PEB (non-duty related) to consider her case for fitness determination and that she would not be considered for disability entitlements.

7.  Item 2 of the election form states "The results of your duty related MEB/PEB and right to appeal of the findings and recommendation of the MEB/PEB will be provided to you by the PEBLO." 

8.  On 13 August 2010, she requested an honorable discharge from the USAR.  Her election was co-signed by her commander (not the commander who provided a letter of support with her application).  

9.  On 14 November 2010, she was honorably discharged from the USAR under the provisions of Army Regulation 135-178.

10.  She provided an undated letter from her readjustment counseling therapist which states:

* Her mental health was not in the state to adequately select the option to pursue an MEB prior to discharge
* She has been seen by this clinician since December 2009 and attends weekly counseling as well as she receives psychiatric care through the DVA outpatient clinic
* Her primary mental health diagnoses are PTSD, depressive disorder, and chronic lower back pain
* She was taking numerous psychotropics and pain medications before and during the time of her signing the election form
* Her emotional state during the course of treatment during the period of late 2009 to the end of 2010 can best be described as clouded in regards to her cognitive and decision making capabilities
* The negative impact of her medications reached a critical point requiring emergency hospitalization in November 2010 and a complete overhaul of her medical and psychiatric care

11.  She also provided a letter, dated 15 August 2011, from her commanding officer at the time in question.  He attests:

* In May 2010 the applicant was at Fort Dix conducting pre-mobilization training
* During the medical validation process she was not cleared medically for mobilization
* From the time she left Fort Dix to the time she was hospitalized in November 2011 she was on 16 prescribed medications (4 were narcotics, all of which were prescribed by the DVA) for her mental and physical state
* During this time she was by no means in sound mind to sign any military or legal documentation and she received little to no support from the company rear detachment
* She appeared to be under duress when she signed off on documents during the period July to November 2010
* It is his opinion the rear detachment failed to follow the proper protocols ensuring she was taken care of
* There should have been a paper trail regarding her mental frame of mind to take the responsibility on to sign any documentation regarding discharge from the military


* The system and the rear detachment failed her   

12.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or the proximate cause was while performing active duty or inactive duty training.

13.  Army Regulation 635-40 states, in pertinent part, that when a commander or other proper authority believes that a Soldier not on extended active duty is unable to perform the duties of his or her grade or rank because of physical disability, the commander will refer the Soldier for medical evaluation according to Army Regulation 40-501.

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

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows she served two tours in Kuwait and Iraq and she was mobilized for a third combat tour in May 2010.  She was issued a temporary profile for PTSD and depression in May 2010 and found to be non-deployable.  Subsequently, she was found medically disqualified for continued service in the USAR and she was offered options relating to her medical condition.  One of the options was to request an MEB to review her medical records for a final determination about her medical fitness for retention.  However, she elected to be discharged from the USAR rather than a duty related MEB/PEB.  Her commander co-signed her election form.   

2.  She contends her election of the discharge was invalid and in error because the election was made while she was not of sound mind due to her PTSD and medications.  The letters provided by her therapist and commanding officer were carefully considered.  However, there were no approved line of duty determinations submitted in support of her claim that she was unfit due to a duty related disease or injury.

3.  She contends her rear detachment failed to provide her with any information, counseling, or warning about the consequences of her election in violation of Army Regulation, 635-200, chapter 17.  However, this regulation applies to active duty Soldiers.

4.  She also contends item 2 of her election of options mandated that she would be provided with her MEB/PEB rights but these rights were never provided.  However, this item only applies if the Soldier elected an MEB or PEB.  She did not.

5.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board felt an injustice had been done to the applicant.  The Board believed that she did not receive adequate counseling by the rear detachment and also believed that the medications she was taking most likely affected her judgment and decision-making abilities.

2.  As a result, the Board determined that the evidence presented was sufficient to warrant a recommendation for full relief and recommends that all Department of the Army records of the individual concerned be corrected by:

a.  voiding her 14 November 2010 discharge from the U.S. Army Reserve;

   b.  reinstating her in her U.S. Army Reserve status for the purpose of undergoing the medical evaluation board/physical evaluation board process; and

   c. completing a line of duty investigation, as required.




      ___________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)                                         AR20110020928



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ABCMR Record of Proceedings (cont)                                         AR20110020928



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