IN THE CASE OF:	  

		BOARD DATE:	    16 May 2013

		DOCKET NUMBER:  AR20120010188 


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 change of his honorable discharge under Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 13 (unsatisfactory performance) to a medical retirement.

2.  The applicant states he was better than fine prior to the 5 November 2009 terrorist shooting at Fort Hood, TX.  Since then his medical, physical, and mental condition has severely declined.  The Army discharged him the way they did so they would not have to be responsible for him after the shooting.

3.  The applicant provides 110 pages of his personnel service record and 5 volumes of service medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 19 November 2008.  He completed training and was awarded military occupational specialty (MOS) 92W (Water Treatment Specialist).

2.  On or about 6 June 2009, subsequent to completing his MOS training, he was assigned to Company A, 20th Engineer Battalion, 36th Engineer Brigade, Fort Hood and he was scheduled to deploy to Afghanistan.

3.  On 5 November 2009, while processing for deployment, the applicant was shot in the left shoulder by the assailant during the mass shooting on Fort Hood.  He sustained a through-and-through gunshot wound to the left shoulder with a minimally displaced proximal humerus fracture that did not require surgery.  He responded well to the medical care for this wound and he was discharged from the hospital the next day on oral pain medications and oral antibiotics.

4.  After the shooting, the applicant was seen on an almost weekly basis, perhaps averaging a visit per day, from February 2010 until his discharge.  At times, he was seen by two or three providers on the same day.  He was seen frequently by Occupational Therapy, a Nurse Practitioner Manager, a social worker at the Warrior Transition Unit (WTU), and a psychiatric nurse practitioner (a colonel).  He was also seen on a less frequent basis by a doctor of clinical psychology for counseling and by multiple psychiatrists who managed his treatment and medication.

5.  On 15 December 2010, he was issued a temporary physical profile, expiring on 28 February 2011, for post-traumatic stress disorder (PTSD) and shoulder injury.  This profile placed functional limitations in the form of no upper body physical training (PT) and indicated the applicant was in the medical evaluation board (MEB) process.

6.  It appears he was reassigned to A Company, 589th Brigade Support Battalion, 41st Fires Brigade, 1st Cavalry Division, on or about 25 July 2011. Throughout his assignment to this unit, he was frequently counseled by members of his chain of command for various infractions, including:

* 25 July 2011, failure to report
* 26 July 2011, failure to report and disobeying a lawful order
* 28 July 2011, failure to report and disobeying a lawful order
* 29 July 2011, difficulty being on time to formations
* 29 July 2011, failure to report and disobeying a lawful order 
* 1 August 2011, failure to report and disobeying a lawful order
* 3 August 2011, failure to report and disobeying a lawful order
* 23 August 2011, failure to report and disobeying a lawful order
* 6 September 2011, disrespecting a superior noncommissioned officer (NCO), disobeying an order from a commissioned officer, and insubordinate conduct toward a commissioned officer

7.  On 11 September 2011, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully possessing illegal drugs (Spice) on two separate occasions.

8.  On 29 September 2011, he underwent a command-directed mental status evaluation in what is listed as "clearance for administrative separation under 

chapter 14-12 (misconduct) of Army Regulation 635-200.  The report of mental status evaluation, completed and signed by a licensed clinical social worker (LCSW), shows:

	a.  From a behavioral health standpoint, further assessment was needed to determine fitness for duty.

	b.  The applicant is able to understand and participate in administrative proceedings, able to appreciate the difference between right and wrong, meets medical retention standards (i.e., does not qualify for an MEB), and requires further examination or testing to finalize diagnosis and recommendation.  This opinion is due to his current engagement in behavioral health service and score on the PCL-M (measure for post-traumatic stress (PTS) and TBI (Traumatic Brain Injury) screening.

[The PCL is a standardized self-report rating scale for PTSD comprising 17 items that correspond to the key symptoms of PTSD.  Two versions of the PCL exist:  (1) PCL-M is specific to PTSD caused by military experiences and (2) PCL-C is applied generally to any traumatic event.  17-33, low PTS; 34-43 moderate PTS, and 44-85, high PTS].

	c.  The service member has been screened for PTSD and TBI.  PTSD score was 60 and the applicant was referred for a comprehensive PTS evaluation.  Mild TBI screening score was 13.

	d.  The Soldier was screened today in this clinic for chapter 14-12 mental status evaluation.  This Soldier has been screened for TBI and PTSD with positive results.  Service member indicated a PCL-M score of 60 and TBI score of 13 with a reported injury to the head.  At this time, the service member denies suicidal and homicidal ideation.  He does not meet retention standards prescribed in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). The service member is not psychiatrically cleared for administrative proceedings. Service member is referred for further evaluation by command-directed mental status evaluation. 

9.  On 13 December 2011, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200, chapter 13, due to unsatisfactory performance.  He recommended an honorable characterization of service.  The immediate commander stated:

* The applicant's performance within Company A, 589th Brigade Support Battalion was unsatisfactory
* It was clear the applicant did not develop further to become a satisfactory Soldier
* He was resistant to the chain of command and defiant of all just and lawful orders
* Multiple attempts to rehabilitate him with verbal counseling, mentorship, written event-oriented counseling, and discussions were to no avail
* He was unlikely to perform his duties effectively
* He was not working in the Petroleum and Water Platoon because he threatened his chain of command
* He had a poor and disruptive attitude and he had no potential for advancement

10.  The applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by an administrative separation board, waived a personal appearance before an administrative board, and elected not to submit a statement on his own behalf.  He further acknowledged that he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he might be ineligible for many or all of the benefits as a veteran under both Federal and State laws.

11.  On 12 December 2011, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of unsatisfactory performance.

12.  On 13 December 2011, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance with an honorable characterization of service.  Accordingly, the applicant was discharged on 20 December 2011.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed 3 years, 1 month, and 2 days of creditable active service.

13.  His medical record shows he had hundreds of appointments.  A chronology of these appoints is summarized as follows:

	a.  16 February 2010, Social Work intake assessment, complained of anger, sleep disturbances with nightmares, decreased energy.  "In relationship with girlfriend, possible marriage this summer …."
	b.  10 March 2010, Social Work, Unit deployed without him and he has had a hard time making friends in his new unit; has been engaged to be married twice since being shot.  "He recognizes these fast moving relationships were inappropriate and is grateful he did not marry."

	c.  17 March 2010, Social Work, Routine counseling for PTSD, "Recent emotional stress but coping effectively."  No psych meds.  "Released without limitations."

	d.  30 July 2010, Outpatient Psychiatry (D.C.), Doing well, passed physical training (PT) test lately, sleeping well, denies behavioral health (BH) concerns; is deploying to Afghanistan in December 2010.

	e.  30 September 2010, The applicant was going through another Soldiers Readiness Processing (SRP), this time in preparation for deployment to Afghanistan.  One of the SRP personnel noticed his flat affect and sent him to triage at the Counseling Center.  He was noted to have a prior diagnosis of PTSD.  He was referred for a Fit for Duty (FFD) determination prior to deployment.  He denied any ongoing behavioral health issues.

	f.  13 October 2010, Applicant testified at Article 32 hearing.  This date is not of record but was found in news reports.  Although the record states in several places that this occurred on 12 November 2009, it appears to have been an inaccuracy that was then perpetuated by others in subsequent clinic notes.  The record does document that the applicant had an emotional break during testimony and sought or was referred for behavioral health care afterwards.  He was apparently prescribed an anti-anxiety medication.  His diagnosis was Adjustment Disorder.

	g.  21 October 2010 (0200 Hrs), Social Work note in emergency room (ER), Soldier apparently attended a Family Readiness Group (FRG) meeting and the speaker talked about PTSD.  He realized he had all the symptoms.  After texting his NCO that he would not be at work tomorrow the chain of command took him to the ER.  "…clearly trying to process how he has been feeling over this past year and especially after testifying last week then hearing all of the symptoms (SX) of PTSD listed off of an FRG meeting tonight."

	h.  21 October 2010 (1700), Returned to ER with homicidal ideation  "Attended a briefing on PTSD last evening and realized he had all the symptoms, precipitating a period of altered consciousness and anxiety."  "SM is a
5 November 2009 survivor, shot X 1, close range.  Has made physical recovery but has avoided treatment until recently testified at Article 32 Hearing.  Has had acute symptoms since then – severe anger, HI (homicidal ideation) toward Muslims, violent fantasies and less effect from medications."

	i.  21 October 2010, (2000 Hrs), Psychiatrist on call  "… due to Dr. W---h and Colonel (COL) Y----r's strong agreement that service member (SM) needs to be hospitalized … SM should be hospitalized due to earlier evaluations."  Diagnosis: Adjustment Disorder.  "SM will be transferred to Laurel Ridge Hospital [San Antonio, TX]."

	j.  28 October 2010, Outpatient Psychiatry, Nursing Case Management (NCM), "Seen in office today after discharge from Laurel Ridge."

	k.  23 November 2010, Psychiatric and Mental Health Nurse Practitioner.  "He stopped Sertraline, Hydroxyzine Pamoate, and Zolipedem about 2-3 weeks ago attributing to trust issues with this provider."

	l.  23 November 2010, High risk group therapy  Assessment of group "Occupational problems/Partner Relationship"  Diagnosis  "Anxiety Disorder Not Otherwise Specified (NOS)."

	m.  8 December 2010, Psych Nurse Practitioner (NP), "… remains reluctant to take medications and focused on Attention Deficit Hyperactivity Disorder (ADHD) symptoms."

	o.  15 December 2010, WTU Memorandum "statement of medical condition and treatment plan"   A family practice physician at the WTU listed the Soldier's diagnoses as:  a.  "Left Shoulder Pain:  S/p shooting injury to left shoulder after Fort Hood incident.  Closed management:  Will refer to MEB."  b.  "PTSD:  Patient is seen by R&R for medical management."  The current profile was stated to be 113111.  The profile was actually 131111 with a 3 for "upper" in the PULHES system and a 1 for psych (S).

	p.  15 December 2010, a clinic note the same day by the same physician (Major (MAJ) A------n, Family Practitioner), stated he was referring the patient for an MEB for shoulder pain and he would also refer to Psychiatry for a Psychiatric addendum to the narrative summary (NARSUM).  He was issued a temporary profile of 131113.

	q.  22 December 2010, Psych Nurse Practitioner (COL Y----r)  "Soldier has PTSD related to SRP shooting incident on 5 November 2009.  He is not fit for duty at this time and he should not deploy.  Soldier has been treated for about
3 months, hospitalized once; outpatient treatment began on 13 October 2010.  He has not had an adequate trial of treatment and an MEB is not indicated at this time.  Soldier has not been compliant with treatment options and further treatment is indicated."

	r.  5 January 2011, Clinic Note, COL Y----r , Psychiatric and Mental Health Nurse Practitioner  DX PTSD "does not need an MEB at this time," released without limitation.

	s.  3 February 2011, WTU Social Work, "patient appears to be fixated on establishing a diagnosis of attention deficit-hyperactivity disorder (ADHD) in order to obtain a prescription of Adderall …," "medical records indicate substance abuse (Ecstasy) in high school."  Ecstasy is an amphetamine as is Adderall, the drug that the applicant was seeking. 

	t.  4 February 2011, Psych Nurse, "No anxiety"  He denied any intrusive thoughts, avoidant behaviors or hyper arousal symptoms (triad of PTSD).  Chief complaint was attention deficit disorder.  "I have ADHD and I should take Adderall or something like that."  Clinician was reluctant to prescribe Adderall because it was an amphetamine (stimulant) and subject to abuse.  He noted the "Soldier has significant history of using marijuana as a teenager, stimulant abuse – cocaine and has taken someone else's Adderall and felt like he settled down"  "Soldier focused on ADHD the entire session and did not talk about PTSD for more than 5 minutes."  Soldier does present ADHD symptoms; it is not a boardable disorder.  He can function in the military with ADHD actively treated.  Soldier should not receive amphetamines for treatment since his focus without willingness to try other medications before use of amphetamines is troubling and suspicious."  Regarding PTSD "it is unclear at this time regarding this Soldier's fitness status; he doesn't discuss PTSD or the 5 November 2009 incident with this provider; it is highly unlikely that these symptoms have stopped and he is likely minimizing them.  He is not fit for duty at this time until further evaluation and treatment continues.  If he is not interested in treatment then strongly recommend return to a Forces Command (FORSCOM) unit."  "An MEB is not indicated at this time; he either is invested in treatment or he returns to full duty."

	u.  11 February 2011, Psych Nurse, Diagnosis 1 - ADHD "More organized, improved concentration and communication"  On Strattera Diagnosis 2 – PTSD, Seeing therapist weekly or biweekly "no medications indicated at this time."

	v.  15 February 2011, WTU Social work, Reports he is missing formations.  Wants to go to school and call in twice a day.  He has refused offers of multiple jobs on post.  Does not know why he has to stay in the dayroom when not at appointments.  Angry that he is not allowed to go to his room during work.  Just wants out of the Army.  "Patient presents characteristics of entitlement, immaturity, and a sense that he should only have to follow rules with which he agrees."  He stated "If I get my mind set on something, I will do it.  Period."  He stated that "they could send him back to Laurel Ridge but the media that would follow would be interesting."  "He adds that in lieu of refusal to work, he can write a letter to the Pentagon and will be out honorably in two weeks."  "Just wants SW (Social Worker) to know he can and will do what he wants."

	w.  24 February 2011, WTU Social Work, Does not like his ADHD medicine, discontinued it himself several weeks ago.  "Coffee works better."  Frustration regarding MEB unknown.  Emotional distress 0/10.

	x.  2 March 2011, Diagnosis ADHD, Taking medication more often than prescribed and needs refill.  MAJ Cxxxxxs recommended "emmo" [Enhanced Medication Observation] program.

	y.  3 March 2011  Psychology apt.  Diagnosis PTSD and ADHD.

	z.  4 March 2011, Social Work Follow-up, "Taking medication for ADHD predominantly inattentive type."  Reported that he increased his dose of the medication and when MAJ C-----s found out he placed him on the EMO program (see 10 March 2010).

	aa.  10 March 2011, Weekly NCM [Nurse Case Manager], Continues on EMO program (supervised to ensure the taking of medications), unsure start date, at least 4 March 2011, continued through late May 2011."  No decision has been made as far as MEB versus RTD [Return to Duty].'

	ab.  25 March 2011, Clinic note at Nurse Case Manager (NCM) appointment. "Patient is diagnosed with PTSD and has received on and off post therapy.  Patient is not currently being seen by a therapist or a psychiatrist.  (This is a long note and indicated that he is frustrated by continued requirement for EMO and that he continues to see a Social Worker.)  "Patient was referred to the WTB [Warrior Transition Battalion] by MAJ A------n for the purpose of an MEB.  Patient anticipates medical retirement from the Army and is comfortable with that potential outcome."  MAJ A------n is a Family Practice Physician at the WTU (see 15 December 2010).

	ac. 29 March 2011, Requests transfer to a Community Based WTU.  When explained that he did not qualify he requested transfer from WTU to a regular unit; he sleeps 6 hours, no issues.

	ad.  1 April 2011, "no longer thinks about shooting, has no more nightmares," "Just wants to get away from here and get on with his life."  Diagnosis PTSD resolving.
	ae.  11 April 2011, NCM, "SM states that he just wants to be FFD at this point and go back to a regular unit."

	af.  29 April 2011, Psychiatry (O.P.), DX [Diagnosis] Bipolar Disorder and PTSD.

	ag.  19 May 2011, Nurse Practitioner call to SM.  Doing okay; has psych appointment today; will discuss FFD with doctor; wants to be transferred to Fort Lewis, WA, near family.

	ah.  19 May 2011, Social Work, WTU, "Patient reports that he wants to be sent to Fort Lewis and go Special Forces.  He notes that he is mentally ready but needs to be in physical condition."  "Patient is no longer attending individual therapy, noting that he completed therapy.  He is being seen by Dr. P---l at R&R for psychiatric care…."  "Current level of emotional distress at 0/10; no current physical pain."

	ai.  19 May 2011, Psychiatry (O.P.), "At the present time this patient does not present evidence of delusions or hallucinations, mania or depression, or manifestations of PTSD.  Diagnosis Bipolar 1 and PTSD, "in my opinion from the psychiatric point of view this patient is fit to go back to active duty."

	aj.  25 May 2011 WTU NP, FFD and taking leave for 25 days (later extended for an additional week from 25 May - 24 June 2011).

	ak.  26 June 2011, WTU Case Management, "SM has release from active duty orders assigning him to the 589th Combat Support Battalion (CSB), Fort Hood with a report date of 15 July 2011."  "… was AWOL [absent without leave] for a period of time after the end of his leave."  "SM states that he is going to do whatever he needs to in order to get back into WTB."

	al.  11 July 2011, Has orders to the 589th CSB on Fort Hood on 15 July 2011. Changing his mind about RTD; AWOL for a period of time at the end of his leave.

	am.  19 July 2011, Psychiatry (W.W.), Diagnosis - Mood Disorder (in lieu of previously diagnosed Bipolar Disorder).  "He states he has been deemed able to return to work and full duty by WTU and is no longer enrolled there."

	an.  23 August 2011, Psychiatry W.W., DX Mood disorder.  No chief complaint.

	ao.  1 September 2011, 1st Brigade Combat Team, multiple attempts to schedule a Command Directed Mental Health Evaluation in consideration of a chapter 14 discharge.

	ap.  2 September 2011, brought to Department of Emergency Medicine by command and seen by a Social Worker assigned to the ER, "difficulty readjusting to unit since transfer from WTU back to regular unit."  Homicidal threat against platoon sergeant and squad leader; admitted to hospital (Metroplex) [Metroplex Health System, Killeen, TX] until 14 September 2011."

	aq.  16 September 2011, NCM visit; follow up visit after discharge from Metroplex (civilian hospital) where he was hospitalized for homicidal ideation.  Metroplex diagnoses "Adjustment Disorder, ADD versus ADHD, anxiety disorder with panic attacks, insomnia, rule out PTSD."

	ar.  16 September 2011, NCM visit; follow up visit after discharge from Metroplex (civilian hospital) where he was hospitalized for homicidal ideation.

	as.  16 September 2011, Psychiatrist (D.C.), "diagnosed with ADHD at the Metroplex hospital and is now on Adderall.  SM has been evidencing behavioral problems in his unit including oppositional defiant behaviors.  SM is evidencing adjustment problems to the unit often blames others for the problems.  It is my opinion that he does not have the ADHD but his oppositional behaviors should not (be) construed as ADHD.  He has hardly done any work in the past few months and I am not clear how one can make a diagnosis of ADHD in a brief inpatient stay."  Diagnosis:  "Adjustment disorder with disturbance of emotions and conduct."

	at.  19 September 2011, Clinical Psychology, Applicant was angry after first reading of Field Grade Article 15 for spice in his barracks room.  "SM says he would like to ETS [Expiration of term of service] in June 2012 or get out and get treated in his home town."  "…he denies nightmares," "…denies feeling depressed," and "…wants me to assist him to be considered for MEB."

	au.  29 September 2011, MSE to clear for chapter 14-12 separation; he was seen by social worker, screened positive (responses to standard questionnaire) for PTSD and TBI although no history of head injury, not cleared for administrative separation and referred for further evaluation." 

	av.  4 October 2011, Psychiatrist (S.N.), States that discharge diagnoses from Metroplex were Adjustment Disorder with mixed disturbance of emotion and conduct, ADHD, Anxiety with panic attacks, and insomnia.  In taking a de novo history the psychiatrist stated, "He did not give history of his issues with chain of command or pending chapter possibilities.  He did not give the history of previous Laurel Ridge admission or Metroplex admission.  He did not report that he dropped out of school in the ninth grade until questioned closely about his educational background."  "He did not give indications of current PTSD symptoms:  Denies nightmares and reports that sleep is much improved.  He appears very calm and no indications of hypervigilance or hyper arousal of startle."  Diagnosis "Adjustment Disorder with Disturbance of Emotions and Conduct:  Note ADHD per SM report."

	aw.  6 October 2011, Underwent a battery of tests as part of the further evaluation requested on 29 September 2011.  Testing included a Minnesota Multiphasic Personality Inventory (MMPI-2), Structured Interview for Malingering Symptoms (SIMS), Structured Interview of Reported Symptoms (SIRS), and Test of Memory Malingering (TOMM).

	ax.  12 October 2011, was seen by PhD Psychologist (M.A.) for interview (notes completed 22 and 23 November 2011).

	ay.  26 October 2011, NCM, Outpatient Psychiatry "Walk-in" visit, "SM stated he is ready to get out of the Army."  States if he is forced to do anything he will respond negatively."  SM would like to have disability when he leaves the service but, at the same time, declines to wait for the MEB."

	az.  27 October 2011, Telephone to NCM, "SM stating that the R&R Triage is closed and he just wants to be put away at this time because he is very angry.  SM stated that he is going to the ER now."

	ba.  31 October 2011, Psych discharge summary.  Date of admission unknown; Diagnosis:  Adjustment Disorder.  Multiple problems at unit due to refusal to report for duty on at least 30 occasions; disrespect to the first sergeant; and leaving place of duty for hours at a time.  He wants out of the Army and demands to leave on an honorable discharge."  He did not require any psych medications during the hospitalization and did not report any PTSD symptoms.

	bb.  18 November 2011, NCM, "SM unit called two days ago asking if NCM had seen SM because he was missing.  SM stated he was not missing but sleeping in his room.  SM reported he was accepted into the WTU.  SM smiled and stated "I told you they could not chapter me no matter what I do."

	bc.  22 November 2011, The testing and interview were summarized by PhD Psychologist (M.A.)  "SM is cleared for any administrative action deemed appropriate by command."  Diagnoses:  Adjustment disorder with disturbance of emotions and conduct:  continues.  SM is cleared for administrative discharge.  In my opinion SM does not have PTSD at this time."

14.  An advisory opinion was received on 30 April 2013 from the Office of the Surgeon General (OTSG) in the processing of this case.  An OTSG official recommended denial of the applicant's case.  He stated:

	a.  The applicant has requested his discharge be changed from an Army Regulation 635-200, chapter 13, unsatisfactory performance to a medical retirement.  Conclusions for this advisory opinion are drawn solely based on available documentation from his time in service unless otherwise indicated.

	b.  The applicant was shot in the shoulder during the 5 November 2009 shooting at Fort Hood.  As might be expected, he experienced varying levels of post-traumatic stress symptoms, up to and including meeting full criteria for a diagnosis of PTSD at different points in time.  In the two-year period between the shooting and his discharge, he engaged in behavioral health care intermittently and when engaged, often had difficulty complying with treatment recommendations.  His primary diagnoses were Adjustment Disorder and PTSD, though his symptoms appeared to resolve at various times.  At the time of his discharge, his PTSD appeared to be resolved and his last diagnosis was Adjustment Disorder with Mixed Disturbance of Emotions and Conduct.

	c.  Following the shooting, a team ensuring survivors received any needed services contacted him regularly to monitor for any assistance needed.  In January 2010 he sought help for post-traumatic stress symptoms and was diagnosed with mild PTSD in March.  His symptoms may have resolved at that time as he did not follow up with his therapist at that time and case management notes through September document him doing well and experiencing minimal symptoms.  When he was seen at the end of September for a pre-deployment screening, he was cleared for deployment.  After he testified at the shooter's trial in October, he experienced a resurgence of symptoms which led to a brief psychiatric hospitalization for acute symptoms and homicidal ideation.  He was subsequently seen for his PTSD, though many of his sessions focused on an unrelated issue of importance to him.

	d.  In December 2010, he was assigned to the Warrior Transition Battalion (WTB) while awaiting an MEB.  An administrative review of his record at that time did not support an MEB, and it was noted further treatment was indicated and that to date he had not had an adequate trial of treatment and had not been compliant with treatment options.  Two subsequent notes in January and February 2011 negated the need for an MEB.  In April 2011, he generally denied post-traumatic stress symptoms and did not think he had further issues to address in therapy, and his PTSD was noted to be resolved.  Just prior, at the end of March, he was diagnosed with Bipolar Disorder by one provider; however, the notes did not support that diagnosis.  During a follow up appointment with his therapist, they discussed the diagnosis and he (the applicant) denied any history of manic or hypomanic episodes, which is a key requirement for the diagnosis.  A subsequent provider did not find he had symptoms consistent with a bipolar diagnosis, and that diagnosis was dropped.  While PTSD appears in some later notes as a diagnosis, it appeared to have been carried over because the symptoms required for that diagnosis were not apparent.  From 2-14 September 2011, he was again admitted for inpatient psychiatric treatment after expressing homicidal ideation toward a member of his chain of command and thoughts of harm to hospital staff.

	e.  In October 2011, he received a command-directed mental status evaluation related to processing his administrative discharge under Army Regulation 635-200, chapter 14-12c.  Consisting of psychological testing and clinical interview, the psychologist concluded the results suggested Adjustment Disorder with Disturbance of Emotions and Conduct and in his opinion the applicant did not have PTSD at that time.  At the end of October 2011, he expressed homicidal ideation for members of his unit, and was again briefly hospitalized.  The discharge note stated he was not reporting any PTSD symptoms at that time.  In terms of his adjustment disorder, it appeared his final episode was acute, that is, lasting less than 6 months in duration.  In November, his contacts were case management follow ups and post-hospitalization transition groups with no significant symptoms reported, and in December he was discharged for unsatisfactory performance after numerous disciplinary actions.

	f.  The available documentation, of which there is a copious amount, does not support a mental health disorder at the time of separation that would have warranted an MEB.

15.  The applicant was provided with a copy of this advisory opinion; however, he did not respond. 

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and/or severance pay benefits:
* the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty for training
* the disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence

	a.  Chapter 3 states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

	b.  Paragraph 3-3b(1) states that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his/her office, grade, rank or rating.  

	c.  Appendix B, paragraph B-3c, states there are many conditions, including neuropsychiatric disorders, which may be improved sufficiently by treatment to prevent disability, or to significantly decrease it.  If a Soldier unreasonably fails or refuses to submit to medical or surgical treatment or therapy, or take prescribed medications, or to observe prescribed restrictions on diet, activities, or the use of alcohol, drugs, or tobacco, that portion of the disability that results from such failure or refusal will not be rated where it is clearly demonstrated that the Soldier was advised clearly and understandably of the medically proper course of treatment, therapy, medication, or restriction; and the Soldier's failure or refusal was willful or negligent and not the result of mental disease or a physical inability to comply.

17.  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, a physical evaluation board (PEB) rates all disabilities using the VA Schedule of Rating Disabilities.  Chapter 3 lists various conditions that warrant referral to an MEB.

	a.  MEB's are convened to document a service member's medical status and duty limitations insofar as duty is affected by the member's medical status.  There are multiple situations that require consideration by a MEB and include neurological disorder, disorders with psychotic features, mood disorders, personality disorder, adjustment disorder, etc.  Additionally, a history of, or current manifestations of, personality disorders, disorders of impulse control not elsewhere classified, transvestism, voyeurism, other paraphilias, or factitious disorders, psychosexual conditions, transsexual, gender identity disorder to include major abnormalities or defects of the genitalia such as change of sex or a current attempt to change sex, hermaphroditism, pseudo- hermaphroditism, or pure gonadal dysgenesis or dysfunctional residuals from surgical correction of these conditions render an individual administratively unfit.  These conditions render an individual administratively unfit rather than unfit because of physical illness or medical disability.  These conditions will be dealt with through administrative channels, including Army Regulation 635-200. 

	b.  PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

18.  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 percent of service and a disability rating at less than 30 percent.

19.  Army Regulation 635-200 sets forth the policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 13 states a Soldier may be separated if it is determined that he/she is unqualified for further military service because of unsatisfactory performance; their retention will have an adverse impact on military discipline, good order, and morale; their ability to perform duties effectively is unlikely; and/or their potential for advancement or leadership is unlikely.

20.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.




DISCUSSION AND CONCLUSIONS:

1.  The applicant was a victim of the November 2009 Fort Hood shooting.  His gunshot wound to his left shoulder was uncomplicated and did not require surgery but he was hospitalized for overnight observation and antibiotics.  Officials at Fort Hood responded immediately with counseling services to the victims.  He went on 30 days of convalescent leave after the shooting but was initially assessed prior to leave and arrangements were offered to provide counseling at his home town during leave.  It does not appear that this offer was accepted but phone calls by mental health personnel were made to his home to see how he was doing.

2.  After returning to Fort Hood, his medical care was mostly in the form of physical therapy for his left shoulder.  His physical recovery was uncomplicated but he was on narcotic pain medications for about 7 months.  There was no hint of abuse of these medications but it was noted that withdrawal was difficult.  He had a temporary profile that prevented pushups but was eventually found to be FFD.  By 30 July 2010, he had passed a PT test and was preparing for deployment to Afghanistan in December 2010.

3.  In the initial months after returning from convalescent leave, he was seen on a weekly or biweekly basis by Social Work Services.  He had a diagnosis of PTSD. He had issues with sleep and anger but did not require psychiatric medications or cognitive therapy.  Although he had no known head injury he was screened for TBI and the screen was negative.  His unit deployed without him and he was assigned to a new engineer unit.  It took a while to develop new relationships but he felt that his chain of command was generally supportive.  He had a girlfriend and was contemplating marriage.  He was assigned to a Nurse Case Manager who facilitated and tracked his appointments.  He was seen intermittently by a PhD Clinical Psychologist (M.A.) and his medications were managed by a psychiatrist.  With an upcoming deployment looming, he began to regret his return to duty with a regular unit.  He stated that he wanted to get back into the WTU.  On 30 July 2010, he was noted by a psychiatrist to be sleeping well and without any behavioral health concerns.  

4.  On or about 30 September 2010, he was at the SRP site processing for his upcoming deployment and was noted to have a flattened affect (diminished visible emotion) during his interview.  He was sent to triage at the counseling center for a pre-deployment FFD evaluation.  No behavioral health issues were identified.  But this changed when he was called to give testimony about his shooting.  He had an emotional break on the stand and was later treated with medicine for anxiety by Dr. W---h and/or COL Y----r.  There are multiple references to a hearing held on 12 November and a subsequent admission to Laurel Ridge.  A clinic note on 21 October, however, mentions his recent testimony at an Article 32 hearing and it is clear that his Laurel Ridge admission was on 21 October.  It appears that his testimony was on or about 13 October 2010.

5.  On 20 October 2010, he attended an FRG meeting and a Social Worker spoke on PTSD.  He reported later that he recognized the symptoms in himself.  He texted his NCO that he would not be at work the next day and his chain of command was alerted.  They picked him up and took him to the ER.  In addressing his mental state the Social Worker who initially saw him in the ER noted that although he had healed physically since the shooting, he had resisted [mental health] treatment.  Now he has homicidal ideations directed at Muslims in particular.  The admitting physician diagnosed him with adjustment disorder and, due to a lack of space at Darnall Army Medical Center and at Metroplex Pavillion, he was transferred to Laurel Ridge.

6.  At this point it appears he wanted out of the Army.  He later made that statement to multiple providers.  He was diagnosed with Anxiety Disorder NOS but was not compliant with treatment.  He wanted an MEB and he sought to be transferred to the WTU and was successful.  In December 2010 a family practice physician at the WTU tried to refer him for an MEB.  This appears to have been somewhat ill-advised.  He noted that he was recommending an MEB for the applicant’s shoulder which did not meet retention standards.  As previously noted his shoulder was already healed and he was FFD and approved for deployment. This same WTU FP doctor noted that the applicant also had PTSD that did not meet retention standards and that he would request a Psychiatric Addendum to the MEB Narrative Summary.  This was also premature.  Soldiers are not assessed for retention unless their malady is untreatable or not expected to satisfactorily improve with treatment.  Behavioral Health personnel did not concur with the applicant's need for an MEB.  There had not been a satisfactory trial of therapy and the applicant was poorly compliant with therapy.

7.  His remaining history as a Soldier can be described as "uncooperative."  He was non-compliant with treatment, often stopping his medications on his own and arguing for other medications that he preferred (i.e., an amphetamine used to treat ADHD).  For several months he had to pick up his medications on a daily basis and visibly take them in front of a nurse to ensure compliance.  He had multiple instances of failure to report and many instances of disrespect to NCOs and officers.  He was often "AWOL" for hours at a time when he reportedly returned to his room and slept during duty hours.  He was uncooperative while in the WTU and later in another unit when he was, at his request, transferred from the WTU.  Although he had numerous episodes of misconduct, his misconduct was, with one exception, military in nature.  He received an Article 15 for possession of Spice.

8.  Although he carried a diagnosis, at various times, of PTSD, Anxiety Disorder, and/or Adjustment Disorder, he almost routinely denied symptoms of the above and was not interested in treatment for same.  In February 2010, several clinic encounters involve his interest in being diagnosed and treated for ADHD.  It was not the opinion of Mental Health providers that he had ADHD and they refused the amphetamine (Adderall) that he sought for treatment.  Several months later he achieved admission to a civilian hospital (Metroplex) by espousing a homicidal ideation against the ER personnel at Darnall and was eventually discharged from that hospital (Metroplex) with a diagnosis of ADHD and a prescription for the Adderall that he had sought for months.

9.  In September 2011, after receiving an Article 15 for possession of Spice, he again sought an MEB.  On 29 September 2011, he underwent a Mental Status Evaluation in preparation for a discharge for misconduct.  At that time his answers to the screening questions are positive for both PTSD and TBI.  He had previously been negative for both and had never been diagnosed with TBI nor was he found to have any history of head injury.  His positive screens necessitated additional evaluation before he could be approved for a misconduct discharge.  His subsequent evaluation was quite extensive and a Clinical Psychologist (M.A.) who knew the patient well did an exhaustive interview and interpreted the test results.  On 22 November 2011, he summarized the results of the testing from 6 October 2011 and the interview on 12 October 2011.

10.  This 4-page document is quite extensive.  It documents honest effort in places and the suggestion of malingering in others.  Dr. A---s concluded by saying "He does not have post traumatic stress disorder at this time.  He does not have any condition which would indicate he is medically unfit for duty."  In the intervening time between the completion of his testing and the summary provided by Dr. A---s, the applicant was admitted to the hospital one last time as a Soldier. He was worried about his unit's intention to discharge him with something less than an honorable characterization and had gone to the first sergeant's office to discuss it.  He ended up getting mad and walking out on the first sergeant.  He went to the ER and was admitted.  Both his admitting and discharge diagnoses were Adjustment Disorder.  He did not have any symptoms of PTSD and did not require any Psych meds.  

11.  The record does not support the applicant's contention that he should have been medically retired.  In spite of being twice assigned to the WTU through his own efforts, the only physician who ever recommended an MEB was an FP doctor relatively unfamiliar with the applicant/patient.  This recommendation was quickly negated by mental health and, apparently, orthopedic providers.  The applicant was never in the Army PDES.  He was thoroughly evaluated by dozens of mental health professionals over a period of 2 years and he was both mentally and physically FFD at the time of discharge.  His only shortcoming as a Soldier, necessitating his discharge, was his refusal to serve.  His command had every right to discharge him for misconduct with a characterization of service less than fully honorable.  He was given every opportunity to succeed as a Soldier and his lenient discharge for unsatisfactory performance, characterized as honorable, will allow him to succeed as a civilian.  Ultimately he left the Army on his own terms with an honorable discharge, just as he said he would.

12.  He contends that he should receive a medical retirement.  Such action requires a rating of at least 30 percent for the disabling condition(s) by a PEB.  But, the referral to a PEB would have required a finding by an MEB of a medically-unacceptable condition that prevented him from performing the duties required of his grade and military specialty.  No such unacceptable medical condition was found.  In other words, there is no finding in the available records that he was physically unfit at the time of separation.

13.  Therefore, his request for a medical discharge is not supported by the preponderance of the evidence.  The evidence is irrefutable that at the time of separation the applicant was medically fit.  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.  His service was not interrupted by a medical condition.  It was interrupted by unsatisfactory performance.

14.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief for a medical retirement.  His current reason for separation of unsatisfactory performance is the appropriate reason in this case.  Changing the reason to "medical retirement" would amount to a rejection of the Army's core values and would undermine the chain of command's need and responsibility to maintain good order and discipline.









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)                                         AR20120010188



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ABCMR Record of Proceedings (cont)                                         AR20120010188



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