BOARD DATE: 30 May 2013
DOCKET NUMBER: AR20120013444
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 reconsideration of his request for:
a. invitational travel orders to appear before a medical evaluation board (MEB) to determine if his diagnosed Post-Traumatic Stress Disorder (PTSD) met retention standards;
b. an informal physical evaluation board (PEB) to evaluate him for a determination of fitness and percentage of disability;
c. to be retired by reason of physical disability retroactive to 26 September 2007; and
d. entitlement to all back pay and allowances.
2. The applicant states:
* he is a combat veteran who suffered from PTSD and lumbar degenerative disc disease while on active duty
* he went before an MEB, but was not referred to a PEB
* he was told it was too late to add his PTSD to his MEB, as a result his PTSD was never evaluated
* during demobilization, it was noted he should be referred to mental health
* his back problems which began in February 2006 were the focus of the MEB
* he was separated with 10 percent severance pay for his back
* as early as 23 January 2007, his medical records show PTSD
3. The applicant provides:
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his MEB and PEB proceedings
* a DA Form 2823 (Sworn Statement)
* a memorandum
* an email
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests reconsideration of the applicant's request to have his disabilities properly evaluated by the appropriate medical boards and if it is determined that he was unfit for service, retire him by reason of permanent disability effective 26 September 2007, with entitlement to all back pay and allowances.
2. Counsel states:
* Noncommissioned Officer Evaluation Reports (NCOERs) do not reflect a diminution in duty performance
* NCOERs frequently and deliberately avoid mentioning medical conditions to protect the Soldier from separation
* Soldiers who worked with the applicant indicate he successfully performed his duties, but was struggling with deployment-related emotional issues
* the applicant's unfitting condition was not mentioned in his NCOER
3. Counsel provides no additional documents.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110008564, on 1 November 2011.
2. In support of his request for reconsideration the applicant provides the following documents which are considered new evidence and merit consideration:
a. an unnotarized DA Form 2823, dated 30 April 2012, from a Soldier who identified himself as his senior leader and indicates he is well aware of the signs and symptoms of PTSD. He indicates the applicant was very successful in performing his duties, but was struggling with untreated mental health issues because of the stigma attached to Soldiers who sought help for mental health related issues; and
b. a memorandum from the applicant's former supervisor who indicates the applicant displayed excellent performance of duty during his tour to Iraq, but struggled with emotional issues. He also indicates he advised the applicant to seek help for his mental health issues; however, the applicant felt his issues were normal and "hid" them rather than face reprisal for seeking help.
3. The applicant enlisted in the Regular Army on 3 October 1995. He served in Iraq during the periods 5 April 2003 to 14 March 2004 and 15 December 2005 to 15 December 2006.
4. The applicant's previous record of proceedings (ROP) contain 4 pages of a Standard Form (SF) 600 which show:
* 27 December 2006, he was treated for a herniated intervertebral disc
* his problems as herniated intervertebral disc; PTSD; and Adjustment Disorder with Anxious Mood and Anxiety
* a review of his symptoms shows Psychological Symptoms: "No psychological symptoms"
* on 31 January 2007, he was recommended for appearance before an MEB to determine his fitness for duty due to his herniated intervertebral disc
5. On 26 March 2007, an MEB determined that the applicant did not meet retention standards because of back pain and herniated intervertebral disc and recommended that he appear before a PEB.
6. On 11 April 2007, a PEB determined that his disability (L5-S1 protrusion with mild nerve root impingement, without neurologic deficit, range of motion limited by pain, positive tenderness) made him physically unfit and recommended his separation with severance pay and a 10 percent disability rating. On 2 May 2007, he concurred with the findings and recommendation of the PEB and waived a formal hearing of his case.
7. The applicant's previous ROP contains twelve SFs 600, dated 12 April 2007 to 17 August 2007, which show he attended therapy sessions for sleep disorders and evaluation and treatment planning for combat stress. On 17 August 2007, he was released from therapy without limitations.
8. On 26 September 2007, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3), by reason of disability with severance pay. He had served 11 years, 11 months, and 24 days of active service.
9. A review of his DA Forms 2166-8 (NCO (Noncommissioned Officer) Evaluation Reports (NCOERS)) show during the periods August 2003 through May 2006, which were prior to, during and after his deployments, his NCOERs show he had the physical and mental fortitude to complete all missions and stay motivated. Overall, he had an excellent record of performance and service.
10. Army Regulation 623-3 (Evaluation Reporting System) states in paragraph 3-24b, rated Soldiers who voluntarily seek mental health counseling or are entered into a mental health care program for behavioral health issues that have not been detected by the chain of command will not be penalized by mention of this participation in a behavioral health treatment program in an evaluation report. Once a Soldier has been identified in an evaluation report as having mental health issues based on information obtained independently of any information from health care personnel:
a. Voluntary entry into mental health counseling or a mental health care program, or evidence of successful treatment to remedy the original behavioral health issue, will be mentioned as a factor to the rated Soldiers credit.
b. The rating chain should note the status of a rated Soldiers behavioral health improvement and/or maintenance of an improved status in the evaluation report covering the period during which the Soldiers status improved.
DISCUSSION AND CONCLUSIONS:
1. The applicant's requests for issuance of invitational travel orders to appear before an MEB and PEB and to be retired by reason of physical disability were carefully considered and found to contain insufficient evidence to support his claim.
2. Neither the MEB nor the PEB proceedings evaluated the applicant for a diagnosis of PTSD. There is no evidence that found the applicant unfit for duty due to PTSD. However, evidence of record shows a PEB found the applicant unfit for duty with a disability rating of 10 percent due to back pain and herniated intervertebral disc.
3. Witness statements confirmed the applicant's satisfactory performance as noted on his NCOER's. Witness statements also state the applicant sought help from his leadership regarding how to cope with the traumatic events he witnessed; however, his leaders state rather than seek professional help the applicant himself stated what he was going through was normal and declined to seek professional help.
4. As a result, the applicant's MEB in regard to his back was accomplished in accordance with the applicable regulations. Therefore, he is not entitled to the issuance of invitational travel orders, appearance before a MEB or PEB for PTSD, to be retired by reason of physical disability, or back pay and allowances.
5. Army Regulation 623-3 clearly states a Soldier who voluntarily seeks mental health counseling not detected by the chain of command will not be penalized by mention of this participation in a behavioral health treatment program in an evaluation report. However, the rating chain should note the status of a rated Soldiers behavioral health improvement and/or maintenance of an improved status in the evaluation report covering the period during which the Soldiers status improved. Therefore, Army Regulation 623-3 clearly allows for a Soldier's behavior status to be annotated on his NCOER.
6. There is no evidence that shows he was recommended to appear before an MEB or PEB due to a diagnosis of PTSD. There is no evidence of record available to show he was found to be unfit for duty due to a diagnosis of PTSD or any other unfitting mental health issue prior to his release from active duty. There is no evidence to show he was unfit to perform his duties due to PTSD. Moreover, statements indicate the applicant elected not to seek help for his mental health issues and more importantly, he was very successful in the performance of his duties.
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 to amend the decision of the ABCMR set forth in Docket Number AR2011008564, dated 1 November 2011.
_______ _ 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) AR20120013444
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ABCMR Record of Proceedings (cont) AR20120013444
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AF | PDBR | CY2012 | PD 2012 00066
The chronic low back pain with degenerative disc disease was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.The MEB also identified and forwarded six other conditions(bilateral knee pain, sleep apnea, hypertension, dyslipidemia, delayed PTSD and adjustment disorder) all meeting retention standards for PEB adjudication.The Informal PEB adjudicated “degenerative arthritis of the spine”as unfitting, rated at 20%.The remaining conditions were determined to be not unfitting.The CI...
AF | PDBR | CY2013 | PD-2013-01394
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ARMY | BCMR | CY2013 | 20130001802
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AF | PDBR | CY2014 | PD2014 01618
on the left; Normal sensory; mild right leg weakness; reflexes symmetric ; Pos. Contended Mental Health Condition .The Board reviewed the evidence for any indication that a MH condition existed at the time of separation and if so, to render a rating recommendation if that condition was adjudged to be unfitting at the time of separation. Physical Disability Board of Review
AF | PDBR | CY2013 | PD2013 00190
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