IN THE CASE OF: 

		BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120011895 


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:

The applicant defers his request, statement, and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) and National Guard Bureau (NGB)
Form 22 (Report of Separation and Record of Service) to:

* Remove the narrative reason for separation as adjustment disorder
* Show he was retired by reason of physical disability (post-traumatic stress disorder (PTSD)) instead of honorably discharged by reason of other designated physical or mental conditions
* Entitlement to back retired pay and allowances from 25 September 2003, the date of the original discharge

2.  Counsel states:

* The Department of Veterans Affairs (VA) diagnosed the applicant with service-connected, chronic and severe PTSD
* His severe PTSD and service-connected knee injuries impeded his ability to perform his job
* The Army diagnosed him with an adjustment disorder in error; the VA's PTSD diagnosis confirms the error
* 
He was not given ample opportunity to recover and doctors at Fort Drum, NY, failed to diagnose him with PTSD

3.  Counsel provides:

* 1981 DD Form 1966/1 (Application for Enlistment – Armed Forces of the United States)
* 2003 NGB Form 22
* NGB Form 23B (Army National Guard (ARNG) Retirement Points History Statement)
* DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 200112 – 200211
* DA Forms 2166-7 (NCOER) for the period 200012 - 200111, 199912 - 200011, 199812 - 199911, and 199712 - 199811
* 2003 DD Form 214
* AF Form 3899 (Aeromedical Evacuation Patient Record)
* Narrative Summary and Patient Discharge Instructions
* DA Form 31 (Request and Authority for Leave)
* DA Form 4856 (Developmental Counseling Form)
* DA Form 3822-R (Report of Mental Status Evaluation)
* Memorandum for Record
* Action memorandum concerning his separation under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph     5-17
* Notification of Eligibility for Retired pay at Age 60 (20-year letter)
* Orders 191-056 (transfer to the Retired Reserve)
* VA rating decisions and selected VA records
* Fleet Hospital Eight Mental Health Department Questionnaire
* DD Form 2796 (Post-Deployment Health Assessment)
* Self-authored letter from the applicant
* Letters from the applicant's spouse, sister, and mother
* 2012 medical doctor statement

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's service records are not available for review with this case.  An extensive search was undertaken to locate his service records, including his separation packet and medical records, which are necessary for the processing of his application.  Unfortunately, they could not be found.  Aside from a DD Form 214 in his service records, this case is considered completely based on documents provided by the applicant and/or his counsel.

3.  The applicant was born on 12 January 1956.  His NGB Form 23B shows he initially enlisted in the ARNG on 21 September 1974 and he was discharged on 20 September 1980.  He again enlisted in the ARNG on 24 February 1981 and he was discharged on 30 September 1994.

4.  His NGB Form 22 shows he enlisted in the Connecticut ARNG (CTARNG) on 30 June 1997 and he served through what appears to be extensions in the ARNG.  He held military occupational specialties (MOS) 62E (Construction Equipment Operator), 54B (Nuclear, Biological, and Chemical Specialist), and 12B (Combat Engineer).

5.  His NCOERs from December 1997 through November 2002 show he held the rank/grade of sergeant (SGT)/E-5 as of 30 June 1997 and he was assigned as a construction equipment operator with Detachment 2, Headquarters, State Area Readiness Command (STARC), Training Support and School Directorate (TSSD), CTARNG, Niantic, CT.

6.  On 7 March 2001, the CTARNG issued the applicant his 20-year letter.  This letter notified him he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

7.  His DD Form 214 shows he was ordered to active duty in support of Operation Enduring Freedom (OEF) on 24 February 2003.  He subsequently served in Kuwait from 3 May to 30 May 2003.  He was assigned to the 248th Engineer Company, Norwich, CT.

8.  He submits an AF Form 3899, dated 27 May 2003, that shows he was evacuated from Kuwait for chronic right groin and/or abdominal pain.  The form states the applicant's related prostate pain was elevated.

9.  On 31 May 2003, he was admitted at Walter Reed Army Medical Center, Washington, DC for an adjustment disorder.  He was discharged on 11 June 2003 and he was placed on convalescent leave from 11 June to 11 July 2003.  The Narrative Summary and Patient Discharge Instructions he provides shows:

	a.  He was admitted to the hospital for abdominal pain on 31 May 2003.  His records were inconsistent.  His pain resulted from an assessment of knee pain at a field hospital.  He had a history of degenerative joint disease and/or surgery.  There was no identifiable etiology to his complaint.

	b.  He filled out a post-engagement for PTSD and scored high for some indices with symptoms related to his brother's death 10 years earlier and not due to combat stress.  He cried in front of the physician and stated his brother died of cancer.  He entertained the thought of having cancer.

	c.  On arrival at the hospital, he had minimal residual abdominal symptoms and reported significant improvements of the abdomen.  A screening questionnaire he filled out in Spain after evacuation from Kuwait endorsed some symptoms of complicated bereavement/depression.  However, on interview at Walter Reed Army Medical Center, he downplayed and minimized those symptoms.  He stated repeatedly that if he could go home and see his wife and own doctor, he would heal both physically and emotionally.

	d.  His diagnoses was as follows:

* Axis I:  Adjustment Disorder with mixed anxiety and depressed mood (resolved)
* Axis II:  None
* Axis III:  Knee pain with knee injuries 18 years ago with surgery; prostatitis (resolved)
* Axis IV:  Geographical separation from primary support, occupational stressors, medical problem

10.  On 27 August 2003, the applicant was counseled by his company commander.  The DA Form 4856 he provides shows his commander notified him he was considering his separation for a mental disorder.  The commander also stated the applicant was previously counseled by the unit first sergeant for continually exhibiting symptoms of depression.

11.  Additionally, on 27 August 2003, his company commander submitted a memorandum for record wherein he stated the applicant was evaluated on
21 August 2003 at the Behavioral Health Clinic, Fort Drum.  His evaluation indicated he appeared to be suffering from depressive and anxiety symptoms that occurred within the setting of difficulties adjusting to deployment.

12.  On 2 September 2003, he underwent a mental status evaluation.  He was referred to the Behavioral Health Clinic for follow-up care after being discharged from Walter Reed Army Medical Center with a diagnosis of adjustment disorder with mixed anxiety and depressed mood.  The DA Form 3822-R he provides shows:

	a.  His behavior was normal, his level of alertness was dull, and his level of orientation was fully oriented.  His mood or affect was anxious, his thinking process was clear, his thought content was normal, and his memory was poor.

	b.  His diagnosis was that of an adjustment disorder with mixed anxiety and depressed mood.  He had severe difficulties adjusting to the stress associated with deployment.  These symptoms were likely to reoccur with future deployments.  The Chief of Mental Health Division recommended his discharge from the service and that he be allowed to retire.  He specifically recommended:

* A chapter 5-17 separation for adjustment disorder with mixed anxiety and depressed mood
* He would likely benefit from receiving psychological services focused on reducing anxiety and depression and on increasing coping skills
* He would continue treatment for these services until separation
* He was psychiatrically cleared for any administrative actions deemed necessary by his chain of command

13.  He provides a memorandum, dated 2 September 2003, signed by his former company commander and addressed to the garrison legal secretary, recommending an honorable discharge under the provisions of Army Regulation 635-200, chapter 5-17.

14.  The complete facts and circumstances surrounding his discharge from active duty are not available for review with this case.  However, his official record contains a DD Form 214 that shows he was discharged on 25 September 2003 at Fort Drum under the provisions of Army Regulation 635-200, chapter 5-17, by reason of "Other Designated Physical or Mental Conditions," with a separation code of "LFV."  He completed 7 months and 2 days of creditable active service during this period of active duty service.

15.  Orders 191-056, issued by the CTARNG, dated 25 September 2003, honorably discharged him from the Army National Guard and transferred him to the Retired Reserve, effective 25 September 2003.

16.  His NGB Form 22 also shows he was discharged from the CTARNG on 25 September 2003 in accordance with National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26j(1) and 8-27a by reason of being medically unfit for retention.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Retired Reserve).

17.  Subsequent to his discharge, the VA awarded him initial and later increased service-connected disability compensation for acquired psychiatric disorder, benign polyps claimed as hyperplasic polyps, and recurrent prostatitis.

18.  His record is void of:

* A DA Form 2173 (Statement of Medical Examination and Duty Status) that shows a diagnosis of PTSD
* A line of duty determination
* A separation physical that confirms a diagnosis of PTSD at the time of release from active duty 
* Medical records showing a diagnosis of or treatment for PTSD
* A permanent physical profile due to PTSD
* A recommendation for entry into the Physical Disability Evaluation System

19.  He submitted:

	a.  Self-authored statement, dated 29 May 2012, wherein he describes his military experience over the years with emphasis on his Kuwait experience.  He describes exposure to harsh weather elements; difficulties sleeping; multiple instances of killing, specifically the killing of a foreign national driver who pulled his cell phone by the U.S. Soldiers, and the Soldier feared he was using the cell phone to initiate a detonation and/or explosions.  He also describes nightmares, fear of death, and memories of his brother who died of cancer.  He goes on to describe his evacuation from theater and admittance to the psychiatric ward at Walter Reed.  He also describes his short encounters with the military doctor at Fort Drum, some of the medications he was given, and subsequent discharge 
from active duty and his ARNG unit.  He concludes by going over his VA rating, the need to continue his education, and the difficulties associated with PTSD.

	b.  A statement from his wife, dated 29 May 2012, who states he was full of life prior to his deployment.  However, something happened to him during deployment when he came back a changed man.  He started smoking again, received less sleep, and he became suspicious of people.  He also has nightmares and shaky hands.

	c.  A statement from his sister, dated 29 May 2012, who states when he returned from Kuwait and his mood was different.  He was quickly agitated and his hands shook.  He began drinking heavily and started isolating himself.  Although the medication has helped, he still has not fully recovered. 

	d.  A statement from his mother, dated 29 May 2012, who states many of her family members and relatives served in the military.  She also states something happened to her son when he was deployed.  He came back upset and nervous. He never stated what went wrong and it hurts to see her son suffering.

	e.  A medical statement from a medical doctor, dated 24 April 2012, who interviewed the applicant at his counsel's request on 6 January 2012.  She interviewed him for 90 minutes, evaluated his service medical records, and spent nearly 4 hours reviewing his VA medical records.  She focuses on the differences between an adjustment disorder and PTSD.  Her conclusions were that his symptoms of alcohol, insomnia, and nightmares are more congruent with PTSD but he did not meet the criteria for PTSD and is in a group of veterans who experienced delayed onset of this disorder.  Another conclusion is that the applicant did not receive adequate treatment for PTSD until he arrived at the VA and that he was not given an adequate opportunity to recover from his adjustment disorder, typically 6 months.

20.  Army Regulation 635-200, chapter 5, paragraph 5-17 states commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  Members may be separated for physical or mental conditions not amounting to disability, sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.  

21.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. It identifies the SPD of "LFV" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, paragraph 5-17, based on a physical condition, not a disability.

22.  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 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 (Physical Evaluation for Retention, Retirement, or Separation).

	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 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board
* 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 medical evaluation board (MEB) and the physical evaluation board (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 or not 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 veterans 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.

23.  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 office, grade, rank, or rating.  

24.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  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.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier’s performance of their duties or may compromise or aggravate the Soldier’s health or well-being if they were to remain in the military Service.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veterans Affairs Schedule for Rating Disabilities (VASRD).  Ratings can range from 0% to 100%, rising in increments of 10%.

25.  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%.  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 at less than 30%.

26.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

27.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a VA rating does not establish an error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

28.  National Guard Regulation 600-200 provides for the management of ARNG enlisted personnel.  Paragraph 8-26 covers reasons, applicability, codes, and board requirements for administrative discharges from the ARNG.

	a.  Paragraph 8-26j of the version in effect at the time stated to refer to Army Regulation 135-178 (Enlisted Administrative Separations), chapter 12, for discharge of Soldiers medically unfit for retention under the provisions of Army Regulation 40-501, chapter 3.

	b.  Paragraph 8-27 of the version in effect at the time provided the reasons for discharge from the State ARNG.  Soldiers separated under paragraph 8-27u would be discharged and transferred to the Retired Reserve if they were not yet age 60.

29.  Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNG 
and the U.S. Army Reserve (USAR).  It applies to all enlisted Soldiers of the ARNG and the USAR who are not performing fulltime active duty in the U.S. Army.  The policy for discharge of Soldiers medically unfit for retention was moved from chapter 12 to chapter 15 in the version of the regulation in effect at the time.  Chapter 15 stated discharge would be accomplished when it had been determined that a Soldier was no longer qualified for retention by reason of medical unfitness under the provisions of Army Regulation 40-501, unless the Soldier requested and was:

* Granted a waiver under Army Regulation 40-501, as applicable
* Determined fit for duty under a non-duty related PEB fitness determination under the provisions of Army Regulation 635-40
* Eligible for transfer to the Retired Reserve (Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers))


DISCUSSION AND CONCLUSIONS:

1.  The complete facts and circumstances surrounding the applicant's separation are not available for review with this case.  However, the available evidence shows the applicant entered active duty on 24 February 2003 and he was honorably released from active duty to the control of his State under the provisions of Army Regulation 635-200, paragraph 5-17 by reason of other designated physical or mental conditions.  

2.  The available evidence shows the applicant was referred for 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 an adjustment disorder with mixed anxiety and depressed mood.

3.  He related issues with the death of his brother and the stress of being away from his family.  He was not diagnosed with PTSD.  His adjustment disorder diagnosis appears to have been incompatible with continued military service.  It appears his chain of command initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17.

4.  There is no evidence in the available records and he did not provide sufficient evidence that shows that at the time of his separation from active duty he was diagnosed with PTSD or any other condition that would have warranted his entry into the PDES.  Medical separation is based on existence of a condition that did not meet retention standards.  He did not have any condition that does not meet retention standards.

5.  Subsequent to his discharge, the VA evaluated him and diagnosed him with depression, adjustment disorder, and PTSD.  It appears the VA also awarded him service-connected disability compensation.  However, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  

6.  With respect to counsel's arguments:

	a.  Counsel contends the applicant was wrongly discharged without benefits because of a medical condition that was incurred in line of duty - PTSD.  He contends that now that the VA awarded the applicant service-connected disability compensation, this, in effect, confirms that the Army misdiagnosed him.  In reality, the VA does not make line of duty determinations and the applicant does not submit a line of duty statement for any medical condition.  He submits selected documents intended to support his contention that the disqualifying condition was incurred while entitled to basic pay.

	b.  The purpose of the PDES is 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 a service-connected disability, and provide prompt disability processing while ensuring that the rights and interests of the Army and the Soldier are protected.

	c.  As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until he or she has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system.  Medical officials are responsible for counseling Soldiers concerning their rights and privileges at each step in the disability evaluation process, beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished.

	d.  Although the applicant's record is incomplete, counsel submits a mental status evaluation that confirms the adjustment disorder; yet, he fails to submit a single document, prepared by medical officials at the time of the applicant's separation, that diagnosed the applicant with PTSD or that if he did in fact have PTSD, this condition was so severe that it rendered him unable to perform the duties required of his grade and military specialty.  

	e.  The findings of the State medical review board are also not available for review.  It is unclear what the applicant's disqualifying condition was.  Counsel places a lot of weight on a statement by a medical doctor in 2012, some 9 years after the applicant's discharge.  The medical doctor states she evaluated his service medical records, yet, none of these records were made available to this Board.  The doctor also stated the applicant did not meet the criteria for PTSD and was in a group of veterans who experienced delayed-onset of PTSD.  It is unclear what the applicant's prior medical history entailed.  An arbitrary ruling in the applicant's favor, without knowing what his records would have shown, would cause prejudice to the Government.

7.  His narrative reason for separation was assigned based on the fact he was honorably released from active duty under the provisions of Army Regulation 635-200, paragraph 5-17, due to a medical condition - not a disability.  Absent this condition, there was no fundamental reason to process him for separation.  Therefore, the only valid narrative reason for separation permitted under this paragraph is "Other Designated Physical or Mental Conditions" and the appropriate SPD code associated with this separation action is "LFV."

8.  In the absence of evidence to the contrary, it is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His narrative reason for separation is correctly shown on his DD Form 214 and he has provided insufficient evidence to warrant changing this reason.

9. 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:

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)                                         AR20120011895



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ABCMR Record of Proceedings (cont)                                         AR20120011895



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