IN THE CASE OF:	  

		BOARD DATE:	  28 June 2012

		DOCKET NUMBER:  AR20110021739 


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:

	a.  his separation authority and separation code shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed; and

	b.  a Medical Evaluation Board (MEB).   

2.  The applicant states:

* The mental and medical evaluation was not only prejudicial but inaccurate and it improperly influenced his command's separation proceedings
* The mental and medical evaluation did not take into account two documented traumatic brain injuries (TBIs) (one for which he was awarded the Purple Heart)
* He was denied an MEB due to the medical and mental health provider's conclusion  

3.  The applicant provides:

* Letter, dated 23 August 2011, from a clinical psychologist
* Annex A  - which lists his exhibits




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.  Having prior service in the U.S. Navy and Army National Guard, the applicant enlisted in the Regular Army on 2 January 2003 for a period of 4 years.  He completed his training and was awarded military occupational specialty 91W (health care specialist).  He deployed to Afghanistan on 24 February 2005.  On 13 July 2005, he was honorably discharged for immediate reenlistment.  He reenlisted on 14 July 2005 for a period of 4 years.  He was wounded in action on 18 October 2005 in Afghanistan and he received the Purple Heart.  He departed Afghanistan on 18 February 2006.    

3.  A Noncommissioned Officer Evaluation Report (NCOER) for the period September 2005 to May 2006 shows the applicant excelled at his job as a medical trainer.  He possessed good military bearing and passed the Army Physical Fitness Test with a score of 273.  

4.  The applicant was admitted to Womack Army Medical Center for suicidal ideation.  

5.  On 17 August 2006, he underwent a mental status evaluation and he was diagnosed as having an adjustment disorder with mixed disturbance emotions and conduct, with Post-Traumatic Stress Disorder (PTSD), with narcissistic traits.  A memorandum for his commander indicated that he had not made prior suicide gestures and his depression had been associated with marital problems and post-deployment adjustment.  

6.  On 18 August 2006, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, for other designated physical or mental conditions.  The commander cited the applicant's mental evaluation dated 17 August 2006.  
7.  On 21 August 2006, the applicant completed a DD Form 2697 (Report of Medical Assessment).  He indicated he had a dislocated shoulder ; weight [loss], fatigue, shoulder and knee pain since his last medical assessment; and denied having suffered from any injury or illness while on active duty for which he did not seek medial care.

8.  On 21 August 2006, the separation authority approved the recommendation and directed the applicant receive a general discharge.  On 6 September 2006, the applicant was discharged under honorable conditions (a general discharge) under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of a physical condition, not a disability.  

9.  Item 25 (Separation Authority) of the applicant's DD Form 214 shows the entry "AR [Army Regulation] 635-200, PARA [Paragraph] 5-17."  Item 
26 (Separation Code) of this DD Form 214 shows the entry "JFV."  Item 
28 (Narrative Reason for Separation) of this DD Form 214 shows the entry, "CONDITION, NOT A DISABILITY."

10.  On 29 April 2008, the Army Discharge Review Board upgraded his general discharge to honorable.

11.  In support of his claim, the applicant provided a letter, dated 23 August 2011, from a clinical psychologist.  He states:

	a.  in October 2005 the applicant suffered a concussion secondary to a blast during an enemy engagement.  The details of that occasion are documented by two of his witnessing superior officers.  The applicant was propelled "clear across the road" and in the immediate aftermath "unresponsive to yelling…disoriented."  The summation of medical records indicate a loss of consciousness of several minutes.  This occasion was the basis of the recent awarding of the Purple Heart.  He suffered a second blast concussion in another combat engagement several months later.  This trauma was of a lesser magnitude, but reportedly still resulted in being significantly dazed.

	b.  in the five years since his discharge from duty, the applicant has manifested very disabling symptoms and psychosocial impairment.  He resides with his spouse, who is also unemployed and disabled secondary to a stroke.  His children include a 3-year old boy and a newborn.  He has been unemployed for several years.  The Department of Veterans Affairs (DVA) recently increased his ratings to 100% for PTSD and 70% for TBI.

	c.  upon discharge and again this year, a component of the applicant's diagnostics has been "Narcissistic Traits…Narcissistic features…Personality Disorder (not otherwise specified)."  This reflects the very regrettable tendency for a personality disorder label to remain once assigned, even when never definitively established, as in this case.  It is clinically untenable to persist in assigning an Axis II syndrome without it ever being affirmed as a clear and convincing disorder.  In this case, the comparatively vague attributions of character pathology in evaluations post-discharge - and after multiple blast 
concussions - markedly contrast with the reports of his combat duty superiors, both of whom emphasize his selfless and reliable conduct throughout the most demanding form of service.     

	d.  the more recent neuropsychological report (March 2010) requires comment.  Impairment of attention and concentration with a recommendation of medication to address the syndrome are noted.  However, the clinician also suggests that the memory testing profile is indicative of deliberate poor effort.  There are several issues with that rendering: 1) the efficiency of working memory is entirely reliant upon the underpinning of intact attention and concentration.  This is particularly so for the novel stimuli one is exposed to in testing; 2) the clinician notes that the veteran's current test results reflect he has "…improved substantially…" compared to 2008, and yet also there are "likely motivation issues in the context of substantial improvement;" 3) performance on a task measuring motivation for attention was within normal limits; and 4) the clinician remarked that there was "interestingly" a correspondingly valid MMPI-2 profile yielding a convincing absence of a deliberate negative response style.

	e.  speaking from vast clinical experience with patients motivated to test poorly (and publishing on the topic), it is quite inconsistent with the syndrome of feigned impairment to have improved performance from prior testing, particularly to a "substantial" degree as in this case.  Instead, malingering is characterized by the features of either stagnation of prior test performance, or, often more commonly, regression from previous results, and furthermore with implausibly poor data across many domains.  Here, the clinician only attributes one dimension of the test profile as merely suggestive of lack of effort.  Very importantly, the MMPI-2 validity profile is the more established measure of motivation, and as noted above, on that measure this veteran's data did not reflect a negative response style.  Thus, rather than being merely a matter of "interest" in the clinical analysis, he believes it is much more sound to give the veteran the benefit of the doubt on account of the overall testing history and profile, e.g., substantial improvement from prior testing, and only an isolated suggestion of less than optimal effort on the recent re-testing when otherwise other multiple measures of motivation were within normal.  Clinical considerations of this isolated instance will be discussed further below in the context of blast concussion.  

	f.  it is fortunate that the literature on the neuroanatomy and functional outcome specific to blast concussion trauma is beginning to be established.  These publications are recent to the last year and post-date the majority of the applicant's psychological record (excepting the more recent comprehensive neuropsychological exam).  This commentary will draw from the work of Ruff (chief neurologist of the DVA) and Peskind.  A core feature of this veteran's post-service symptom history is severe sleep impairment.  According to Ruff:  

		(1.)  Most (blast-concussed) veterans had impaired sleep due to nightmares, which are a manifestation of PTSD.  Disrupted, nonrestorative sleep can worsen neurocognitive impairments. 

		(2.)  Soldiers with TBI can be returned quickly to combat stress, which will preclude a rest period that might aid recovery from TBI.

		(3.)  TBI acquired in combat may be more likely to produce longer lasting or more persistent cerebral injury than civilian-acquired TBI.  Military personnel in Operation Iraqi Freedom (OIF)/Operation Enduring Freedom (OEF) often experience multiple TBI events.  Combat TBI caused by a blast is often associated with two almost simultaneous traumatic events to the brain.  In combat, military personnel are often close enough to an explosion to experience the pressure wave.  In addition, military personnel often experience additional head trauma from the explosion due to being thrown by the blast-wind, and being impacted by shrapnel.

	g.  the first sophisticated radiographic study of the brain regions damaged in military blast-exposure TBI was recently published.  In his opinion, its findings correlate strongly with the applicant's deficits, e.g., sensory, motor, sleep cycle, emotional and cognitive.  The overriding conclusion of this research is as follows:  regions of the brain particularly vulnerable to blast concussion have now at least preliminarily been objectively identified by state of the art nuclear technology, and therefore, in OIF/OEF combat veterans, "persistent post-concussive symptoms after repetitive blast exposure TBI should not be solely attributed to co-morbid psychiatric disorders until the possible contribution of occult brain damage has been fully evaluated."

	h.  bearing these recent and major medical findings steadily in mind, it is important at this juncture to highlight the conclusion of a psychologist who evaluated the applicant at Fort Bragg over 5 years ago:  "The soldier …is not mentally disordered …however, the service member manifests a long-standing disorder of character, behavior, and adaptability."

	i.  in his opinion, this conclusion is flawed in two major respects: 1) it contrasts entirely with the reports of the applicant's combat commanding officers that he "served honorably in Afghanistan for a full year and was regularly praised for his exceptional skills as a combat medic," and furthermore the range of his service record over many years including the Army Commendation Medal with "V" Device, 2 Army Good Conduct Medals, and 4 Army Achievement Medals; 
2) the psychologist rendered his views in the context of an emergency evaluation for suicidality, yet while noting reports of the applicant having recently been accused of domestic violence and illegal activity, and also diagnosing him as likely having a longstanding character disorder, lacked any reference whatsoever to either the long-term positive service record or the veteran's acute medical conditions (per below) that would alter his thoroughly commended usual and customary exemplary behavior.  At that time (mid 2006) there were 2 overriding factors which would have influenced any atypical, aberrant conduct by the applicant: 1) being in the initial phase of reintegration into society after a combat tour and 2) being in the early recovery period from multiple blast concussions exacerbated by PTSD.   

	j.  the applicant is a combat veteran with multiple blast-concussion TBI exacerbated by severe PTSD.  From the standpoint of his overall history and the recent findings of brain damage after blast-concussion, in his opinion the prior psychological evaluations have flaws, and, in one instance, are apparently prejudicial.  This decorated combat veteran should have the benefit of state-of-the-art nuclear medicine diagnostics in order to objectively determine the status of his organic brain function.  At this juncture, only that procedure can assure more accurate understandings of the consequences of his service.

12.  He provided DVA documentation which shows:

* evaluation of PTSD was increased to 100% effective 18 April 2011
* evaluation of TBI was increased to 70% effective 18 April 2011

13.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 5 provides for separation for the convenience of the government.  Paragraph 5-17 provides for discharge for other designated physical or mental conditions.  Commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and excluding conditions appropriate for separation processing under paragraph 5-11 (separation of personnel who did not meet procurement medical fitness standards) or 5-13 (separation because of personality disorder) that potentially interfere with assignment to or performance of duty.  A Soldier separated for the convenience of the government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in an entry-level status.

14.  Paragraph 3-36 (Adjustment Disorders) of Army Regulation 40-501 (Standards of Medical Fitness) states situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.

15.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

16.  Title 38, U.S. Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the mental and medical evaluation was not only prejudicial but inaccurate and it improperly influenced his command's separation proceedings and the evaluation did not take into account two documented TBIs (one for which he was awarded the Purple Heart).

2.  The documentation provided by the applicant was carefully considered.  

3.  The opinion provided by the applicant was rendered 5 years after his discharge.  It does not address the condition for which the applicant was discharged (adjustment disorder) and does not opine as to the severity of any PTSD or TBI at the time of the applicant’s discharge.  The applicant’s last NCOER, for the period ending May 2006 (after he returned from deployment), shows he excelled at his job as a medical trainer.

4.  The evidence of record shows he was diagnosed as having an adjustment disorder with mixed disturbance emotions and conduct, with PTSD, with narcissistic traits in 2006 and he was discharged under the provisions of Army Regulation 635-200, paragraph 5-17, for a condition, not a disability.  This diagnosis was presumably made by competent military medical authorities, and there is no evidence to show either PTSD or a TBI rendered him unable to perform his duties.  Therefore, his separation authority and separation code were administratively correct and in conformance with applicable regulations at the time of his separation.   

5.  It is acknowledged the DVA has granted him a 100% disability rating for PTSD and 70% for TBI.  However, the rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  

6.  Although the applicant contends he was denied an MEB due to the medical and mental health provider's conclusion, the governing regulation states adjustment disorders do not render an individual unfit because of physical disability.  Therefore, there is no basis for the applicant's request for an MEB. 

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

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)                                         AR20110021739





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ABCMR Record of Proceedings (cont)                                         AR20110021739



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