BOARD DATE:	  4 December 2012

		DOCKET NUMBER:  AR20120015766 


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, in effect, his separation under the provisions of paragraph 5-17 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) be voided and that he receive a Medical Evaluation Board (MEB).

2.  The applicant states the symptoms he displayed were ongoing and persistent for a time and do not agree with the diagnosis given.  Upon discharge he was given a diagnosis and rating of post-traumatic stress disorder (PTSD) by the Department of Veterans Affairs (VA).

3.  The applicant provides:

* a letter, dated 17 July 2012, from the Office of the Surgeon General (OTSG)
* an undated letter from a retired first sergeant
* treatment records from his service medical records
* a letter, dated 26 July 2007, from VA Medical Center, Cheyenne, WY
* two pages from a VA award letter, date unknown
* a VA Rating Decision, dated 21 October 2011
* VA medical treatment records
* excerpts from his military service records

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.  He enlisted in the Regular Army on 2 April 2003.  He had previously served 
4 years, 3 months, and 26 days on active duty and 1 year, 6 months, and 1 day of inactive service.  He immediately reenlisted on 1 February 2006 for a period of 
4 years.

3.  He served in Iraq from 14 August 2003 to 14 September 2004.

4.  The remainder of the evidence in this case was not a part of the applicant's Army Military Human Resource Record (AMHRR).  The evidence was provided by the applicant.

5.  His service medical records show he was diagnosed and being treated for anxiety disorder, not otherwise specified, as early as December 2004.  He continued receiving treatment up to his discharge.

6.  An assessment completed by the Cornerstone Family Counseling Center on 
5 September 2006 indicates diagnoses of adjustment disorder, unspecified and PTSD.

7.  On 7 September 2006, he received a behavioral health evaluation at Irwin Army Community Hospital, Fort Riley, KS, by a medical doctor.  The block "Meets the Retention Requirements of Chapter 3, AR 40-501" on the MEDCOM Form 4038 (Report of Behavioral Health Evaluation) was not checked.  The examiner stated the applicant's "ongoing anxiety problems have not responded significantly to treatment.  The Soldier is involved in treatment but will likely not improve to the point of being able to function in his military occupational specialty (MOS)."  Separation under the provisions of paragraph 5-17 of Army Regulation 635-200 was recommended.

8.  His separation package was incomplete.



9.  His commander notified him that he was initiating action to separate him under the provisions of paragraph 5-17 of Army Regulation 635-200.   The commander stated the reason for his proposed separation action was because he was diagnosed with an anxiety disorder, not otherwise specified.  He was recommending his service be characterized as honorable.

10.  The commander also advised him of his right to: 

* consult with legal counsel prior to completing his acknowledgement
* a hearing before an administrative board if he had 6 or more years of active and reserve military at the time of separation
* submit a statement in his own behalf 
* obtain copies of documents that would be sent to the separation authority
* waive any of these rights
* withdraw any waiver at any time prior the separation authority approving her separation

11.  He did not provide a copy of his election or waiver of his rights.

12.  The applicant's commander recommended him for separation under the provisions of paragraph 5-17 of Army Regulation 635-200.  The commander stated the applicant had been diagnosed with an anxiety disorder, not otherwise specified.  He stated the Soldier had been counseled and through subsequent behavior, had demonstrated a lack of acceptance of rehabilitative measures.  He stated the Soldier's condition interfered with assignment to or performance of duty.

13.  The appropriate authority approved the recommendation for discharge and directed he be furnished an Honorable Discharge Certificate.

14.  On 18 December 2006, he was discharged by reason of a condition, not a disability with $11,530.08 in separation pay.  He completed 3 years, 8 months, and 17 days of active service this period that was characterized as honorable.  

15.  A review of the available records failed to show any indication that the applicant was evaluated through the Physical Disability Evaluation System (PDES).  

16.  The VA Rating Decision, dated 21 October 2011, is the result of his claim for an increase in compensation that was received on 18 January 2011.  The Decision does not provide any information as to the results of his initial claim that he apparently filed after leaving active duty in 2006.

17.  A letter, dated 17 July 2012, from OTSG states the applicant's condition was characterized by a persistence or recurrence of symptoms that resulted in interference with effective military performance.  Based on the results of the Behavioral Health Evaluation he was required to be referred to an MEB for determination of fitness status at the time of his military separation.

18.  Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, provided information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Paragraph 3–33 (Anxiety, somatoform, or dissociative disorders) states persistence or recurrence of symptoms resulting in interference with effective military performance is a cause for referral to an MEB.  

19.  Army Regulation 635-200, paragraph 5-17, provides commanders with the authority to approve separations under this paragraph on the basis of other physical or mental conditions not amounting to disability and excluding those personnel who did not meet procurement medical fitness standards and those diagnosed with a personality disorder.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states commanders of medical treatment facilities (MTFs) who are treating Soldiers may initiate action to evaluate the Soldier’s physical ability to perform the duties of his or her office, grade, rank, or rating.  The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB. 

21.  Army Regulation 635-40 states that MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.      

DISCUSSION AND CONCLUSIONS:

1.  He had been receiving treatment for an anxiety disorder, not otherwise specified, since December 2004.  He was also diagnosed with PTSD at one point.  The persistence and recurrence of his symptoms interfered with his military performance of duty.  He clearly should have been referred for processing through the PDES.  His condition warranted a referral to an MEB.  In order to determine if any of his conditions warrant a disability rating, he should be afforded the opportunity to be properly evaluated by appropriate medical personnel and systems designed to determine the degree of disability a Soldier may have prior to separation.

2.  The letter, 17 July 2012, from OTSG states he should have been referred to an MEB at the time of his separation.

3.  Accordingly, the Department of the Army Office of the Surgeon General should take appropriate action to issue the applicant invitational travel orders for the purpose of undergoing the appropriate medical processing and evaluations at an appropriate medical facility that has the capability to properly evaluate the applicant’s medical condition.

4.  Once a determination has been made as to the appropriate disposition of the applicant’s medical condition under the PDES, the applicant will be separated in accordance with the applicable laws and regulations, with entitlement to all back pay and allowances and/or retired pay due him, if any.

5.  In the event that a determination is made that the applicant should have been separated under the PDES, these proceedings will serve as the authority to void his original discharge and to issue the appropriate separation retroactive to his original separation date.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_  ___x_____  _____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 the OTSG contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders to the applicant.  In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.  Should a determination be made that the applicant should have been separated under the PDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 

2.  The Board further determined that 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 voiding his discharge without undergoing evaluation under the physical disability evaluation system.




      _______ _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)                                         AR20120015766





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120015766



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1