IN THE CASE OF:	  

		BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120009364 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was retired by reason of physical disability with an assigned disability rating of 100 percent.

2.  The applicant states:

* he was separated for traumatic brain injury (TBI), post-traumatic stress disorder (PTSD), and major depressive disorder stemming from his service in Iraq
* the regulation has since changed and now prohibits this type of discharge for TBI and PTSD
* Soldiers who suffer from PTSD and TBI should be referred to a physical evaluation board (PEB)

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* separation packet
* DA Form 3822-R (Report of Mental Status Evaluation)
* DD Form 689 (Individual Sick Slip)
* physical profile update
* DD Form 2807 (Report of Medical History)
* DD Form 2808 (Report of Medical Examination)
* DD Form 2697 (Report of Medical Assessment)

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 1 June 2001 and he held military occupational specialty (MOS) 11B (Infantryman).  He served in Kuwait/Iraq from 17 April 2003 to 17 April 2004 and from 10 January 2006 to 19 June 2006.

3.  He was wounded in action on 3 June 2006 by what appears to be an improvised explosive device (IED).  He was awarded the Purple Heart.

4.  He was twice counseled in October 2006 by his platoon sergeant regarding separation.  The platoon sergeant stated the applicant was being considered for discharge due his decreased work performance caused by post-concussive syndrome.  Other factors included noticeable signs of dizziness, concentration problems, forgetfulness, and distraction.

5.  On 10 October 2006, he underwent a command-referred mental status evaluation for deployability and potential treatment.  The division psychiatrist stated:

	a.  The applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and he had the mental capacity to understand and participate in administrative proceedings.  The evaluation carried the following diagnosis:

* axis I – post-concussive syndrome, acute PTSD, and single-episode major depressive disorder
* axis II – no diagnosis
* axis III – concussion from IED blast on 3 June 2006

	b.  The applicant's medication was causing sedation that could impact his duty performance and sleep deprivation would only worsen this.  Although his condition did not warrant a medical evaluation board (MEB), his psychiatric conditions were significantly impairing his ability to effectively perform his military duties.

	c.  Given his condition, the military psychiatrist recommended his expeditious separation under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-17 (condition – not a disability).

6.  On 10 October 2006, he underwent a physical examination at the Friedberg Health Clinic, Germany.

	a.  In his DD Form 2807, he listed various conditions, maladies, and ailments, including post-concussion syndrome, PTSD, and major depressive disorder.

	b.  In his DD Form 2808, doctors noted multiple orthopedic injuries (thumb, hip, and left shoulder), post-concussive syndrome (residual, decreased attention span), PTSD, and major depressive disorder (under psychiatric care).  The doctor noted that based on his PTSD and major depressive disorder, he would not recommend the applicant being tasked to duty requiring sustained (more than 4 hours) activities.

7.  On 11 October 2006, doctors at the Friedberg Health Clinic, Germany, issued him a physical profile that assigned the number "3" in the physical (P) capacity category and listed his medical conditions as follows:

* orthopedic injuries enumerated with the DA Form 2807-1
* post-concussive syndrome
* PTSD and major depressive disorder

8.  On 3 November 2006, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him for other designated physical or mental conditions.  The specific reason was the applicant's diagnosis of post-concussive syndrome, acute PTSD, and single-episode major depressive disorder.  He recommended an honorable discharge.

9.  The applicant acknowledged receipt of the separation notification memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.

10.  Subsequent to his acknowledgement and legal consultation, the applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of other designated physical or mental conditions.

11.  It appears the separation authority approved the applicant's honorable discharge under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of other designated physical or mental condition.

12.  The applicant was accordingly discharged on 1 February 2007.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-17, based on a physical condition, not a disability, with an honorable character of service.  He was assigned a separation code of "JFV."  This form also shows she completed 5 years, 8 months, and 1 day of creditable active service.

13.  On or about 21 August 2012, an advisory opinion was received from the Office of the Surgeon General (OTSG).  An OTSG official stated:

	a.  The applicant underwent a behavioral health evaluation in Friedberg, Germany, on 10 October 2006.  His diagnosis was that of post-concussive syndrome, acute PTSD, and major depressive disorder.  His conditions were characterized by a persistence or recurrence of symptoms that resulted in interference with effective military performance.

	b.  Based on the results of this evaluation, his conditions were boardable conditions that required referral to an MEB in accordance with Army Regulation 40-501 (Standards of Medical Fitness) for determination of fitness status at the time of his separation.  If the MEB had determined he was unfit for duty, he would have been medically separated.

14.  The applicant was provided with a copy of this advisory opinion, but he did not respond.

15.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17, in effect at the time, provided that a Soldier could be separated for personality disorder, not amounting to disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), which interfered with assignment to or performance of duty.  The regulation required that the condition be a deeply-ingrained maladaptive pattern of behavior of long duration that interfered with the Soldier's ability to perform duty.  The regulation also directed that commanders would not take action prescribed in this chapter in lieu of disciplinary action, required that the diagnosis concluded the disorder was so severe that the Soldier's ability to function in the military environment was significantly impaired, and stated that separation for personality disorder was not appropriate when separation was warranted under Army Regulation 635-40.

16.  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 (HRC), is responsible for administering the 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.

	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 service-connected disability
* provide prompt disability processing while ensuring that 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, chapter 3, as evidenced in an MEB
* receive a permanent medical profile, 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, HRC

	c.  The PDES assessment process involves two distinct stages – the MEB and the 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 service members who retire based upon 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.

17.  Army Regulation 635-40 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 states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

18.  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 VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

19.  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 rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

20.  Army Regulation 40-501, chapter 3, gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals in paragraph 3-2, below.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his or her duties; may compromise or aggravate the Soldier's health or well-being if he or she were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual were to remain in the military Service.  Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB.

	a.  Paragraph 3-31 (Diagnosis with Psychotic Features) states the causes for referral to an MEB are as follows:  diagnosed psychiatric conditions that fail to respond to treatment or restore the Soldier to full function within 1 year of onset of treatment or mental disorders not secondary to intoxication, infections, toxic, or other organic causes, with gross impairment in reality testing, resulting in interference with social adjustment or with duty performance.

	b.  Paragraph 3-33 (Anxiety, Somatoform, or Dissociative Disorders) states the causes for referral to an MEB are as follows:  persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization, or persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment, or persistence or recurrence of symptoms resulting in interference with effective military performance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was referred to a mental status evaluation subsequent to exhibiting signs that his immediate commander perceived to have interfered with his ability to perform his duties.  He underwent a mental status evaluation that diagnosed him as having post-concussion syndrome, PTSD, and major depressive disorder that impacted his ability to effectively perform his duties.

2.  It appears his chain of command determined this diagnosis was incompatible with military service.  Accordingly, his chain of command initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17.  

3.  However, although his complete service medical records are not available for review with this case and although there are contradictions in the available records, it is possible that an injustice may have occurred in his case.

	a.  The mental status evaluation states the applicant had psychiatric conditions that prevented him from performing his military duties.  This is the 

definition of unfitness.  Yet, the psychiatrist states that his condition did not warrant an MEB.

	b.  On the surface, it appears the applicant should have been referred to the PDES.  Conditions of post-concussive syndrome and PTSD are conditions that require an MEB.  However, in the absence of his complete medical records, it cannot be ascertained if he was provided with treatment, or if he responded to treatment, or if he reached maximum medical benefits but remained unfit.

	c.  While it is premature to medically retire him with a 100-percent disability rating, he is entitled to at least a determination of fitness.  The only way to determine if he was medically unfit at the time of separation is to send his records before an MEB.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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:

* having OTSG contact the applicant and arrange a physical evaluation via appropriate medical facilities and, if appropriate, referral to an MEB
* directing OTSG to issue appropriate invitational travel orders to the applicant to accomplish the physical evaluation and, if appropriate, the MEB
* directing OTSG to issue appropriate invitational travel orders to the applicant to prepare for and participate in consideration of his case by a formal PEB in the event that a PEB becomes necessary


2.  The Board further determined the evidence presented is 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 medical retirement.



      _____________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)                                         AR20120009364



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ABCMR Record of Proceedings (cont)                                         AR20120009364



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