IN THE CASE OF:	  

		BOARD DATE:	  16 May 2013

		DOCKET NUMBER:  AR20120017666 


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, a change to the narrative reason for his discharge from personality disorder to post-traumatic stress disorder (PTSD).  

2.  The applicant states he believes his discharge was unjust.  He states the Department of Veterans Affairs (VA) diagnosed him with PTSD backdated to the date he left active duty. 

3.  The applicant provides the documents identified in item 9 (In support of this application, I submit as evidence the following attached documents) of his application in support of his request.  

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.  On 27 February 2004, the applicant was honorably discharged under the provisions of paragraph 5-13, Army Regulation 635-200 (Personnel Separations), by reason of personality disorder.  The DD Form 214 he was issued at the time shows he completed 3 years, 5 months, and 15 days of active duty service with service in Kuwait and Iraq from 2 May 2003 through 26 October 2003.  

3.  In connection with the processing of this case, an advisory opinion was obtained from the Office of The Surgeon General (OTSG), Director, Health Care Delivery.  This official confirms the applicant underwent a diagnostic behavioral health evaluation on 16 December 2003 and was diagnosed with an adjustment disorder with mixed features  and a personality disorder.  He further indicates the applicant’s military medical records show he was consistently diagnosed with major depressive disorder or depressive disorder not otherwise specified, which are boardable conditions, during multiple sessions in Iraq.  Additionally, the applicant’s responses to a Post-Deployment Health Assessment (PDHA) completed on 4 December 2003 suggest he continued to meet criteria for a depressive disorder.  Further, it indicates the physician evaluating the applicant appears to have minimized or ignored the applicant’s symptoms of PTSD, which had an onset of October 2003.  This official states while not meeting the full criteria for Anxiety Disorder not otherwise specified at the time of separation, his anxiety disorder was a sub-threshold form of PTSD.  This official confirms that the applicant’s personality disorder separation prevented the U.S. Army from appropriate consideration of the applicant’s boardable conditions, which appeared to be exacerbated by military service.  On 26 March 2013, the applicant was provided a copy of this opinion in order to have the opportunity to respond and to date has failed to reply.  

4.  The applicant provides VA documentation that confirms he was granted service connection for his depression (PTSD) with a disability rating of 100 percent.  

5.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.
   
   a.  Paragraph 3–9 provides guidance for the TDRL.  Specifically, it states the TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, 
grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208 (10 USC 1208).  In addition, the condition must be determined to be temporary or unstable.

   b.  Paragraph 4-17 provides guidance for  PEBs.  Specifically, it states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  Its findings and recommendation may be revised. 

6.  The VA Schedule for Ratings Disabilities (VASRD), section 4.129, provides information regarding mental disorders due to traumatic stress.  Specifically, it states that when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 
50 percent and schedule an examination within the six-month period following the veteran’s discharge to determine whether a change in evaluation is warranted.

7.  The 2008 NDAA, section 3.1, effective 28 January 2008, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the Department of Veterans Affairs.  

8.  In a 17 July 2009 memorandum, the Office of the Under Secretary of Defense (Personnel and Readiness) directed that as a matter of policy, all three BCMRs will apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharged after 11 September 2001 and, in such cases where a grant of relief is appropriate, assign a disability rating of not less than 50% for PTSD unfitting conditions for an initial period of six months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence.
It would be inequitable to treat PTSD unfitting conditions differently than any other unfitting conditions.  Therefore, as a matter of equity and policy, provisions of DoD or Army regulations or guidelines relied upon by the PEB will not be considered by the ABCMR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication in all cases in which the applicant was discharged on or after 11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to change the reason for his discharge from personality disorder to PTSD has been carefully considered and found to have merit.  

2.  The evidence clearly shows the applicant was inappropriately discharged by reason of personality disorder while suffering from symptoms of PTSD.  This fact coupled with the OTSG confirmation that the applicant should have been processed through the Physical Disability Evaluation System, and that he was subsequently  given the VA disability rating for PTSD, it is concluded the applicant was suffering from an unfitting PTSD condition at the time of his discharge.  

3.  Under the principles of the 2008 NDAA the applicant's PTSD conditions warrants correction of his record by voiding his 27 February 2004 discharge by reason of personality disorder and to show he was instead separated by reason of disability, temporary on 27 February 2004, and placed on the Temporary Disability Retired List (TDRL) on 28 February 2004, for a minimum of six months at a 50 percent disability rating.  

4. Based on available evidence, the U.S. Army Physical Disability Agency (USAPDA) should evaluate the applicant’s medical conditions to determine if the applicant’s condition six months after placement on the TDRL warranted his permanent disability retirement.  

5.  A Survivor Benefit Plan (SBP) election must be made prior to the effective
date of retirement or the SBP will, by law, default to automatic SBP spouse
coverage (if married).  This correction of records may have an effect on the
applicant's SBP status/coverage.  The applicant is advised to contact his
nearest Retirement Services Officer (RSO) for information and assistance
immediately.  A listing of RSOs by country, state, and installation is
available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.
The RSO can also assist with any TRICARE questions the applicant may have.

BOARD VOTE:

____x___  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  retroactively placing the individual on the TDRL for a minimum of six months at a 50 percent disability rating for PTSD effective the date initially separated;

	b.  the USAPDA evaluating the applicant's medical conditions based on all available evidence  to determine the appropriate final disability rating; and 

	c.  paying him any pay due.  




      _______ _   _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)                                         AR20120017666



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ABCMR Record of Proceedings (cont)                                         AR20120017666


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