IN THE CASE OF:	  

		BOARD DATE:	    3 September 2013

		DOCKET NUMBER:  AR20130001188 


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, medical retirement with a 30 percent rating for post-traumatic stress disorder (PTSD) and correction of his records to show he was medically retired vice honorably discharged.

2.  The applicant states that based on the medical evidence, he should have been medically retired and entitled to retired pay.

3.  The applicant provides:

* Department of Veterans Affairs (VA) rating decision, dated 18 May 2011
* Neuropsychological evaluation at the Haymount Institute, dated 9 July 2010
* VA medical records and notes
* Letter from Dr. J------n T----r, dated 1 November 2012
* Abbreviated medical history by Dr. J. T----r, dated 12 August 2009
* Addendum to abbreviated medical history by Dr. J. T----r, dated
22 September 2009,
* Multiple letters of support
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Service medical 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.  The applicant enlisted in the Regular Army on 19 November 1992 and he initially held an infantry military occupational specialty (MOS) and later MOS 18C (Special Forces Engineer Sergeant).

3.  He served through multiple reenlistments in a variety of stateside or overseas assignments, including Egypt, Kuwait, and Iraq, and he attained the rank/grade of master sergeant (MSG)/E-8.  He was assigned to the U.S. Special Operations Command (USSOCOM), Fort Bragg, NC.

4.  He was honorably discharged under the provisions of Army Regulation
635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 4 on 1 December 2009 by reason of completion of required active service.  He completed 17 years and 13 days of creditable active service.

5.  He underwent a separation physical on 11 August 2009.  He answered in the positive to several health issues.  The medical official listed various maladies, including hearing loss, shoulder pain, wrist pain, knee pain, degenerative disc disease, numbness in lower quad, ankles and feet pain, left hip pain, left knee instability, heartburn, stomach and intestinal problems, prostatitis, traces of blood in urine and kidney stone, genital warts, pressure in the chest, cut on left wrist, and fatigue.

6.  The physician, Dr./Lieutenant Colonel (LTC) J. T----r, indicated the applicant was qualified for separation.  He assigned the applicant a "1" designation in all six factors of his physical profile under the P-U-L-H-E-S serial system, but he submitted a memorandum titled:  Abbreviated Medical History of [Applicant], dated 12 August 2009.  He states the applicant participated in numerous real-world and training operations that spanned the globe.  During his service, he was exposed to infectious pathogens and environmental hazards.  His medical conditions that are service-related include:

* Chronic bilateral knee pain, symptoms first appeared in 1994
* Mononeuritis Multiplex, symptoms first appeared in 1997
* Bilateral shoulder pain, symptoms first appeared in 2001
* Degenerative lumbar disc disease, symptoms first appeared in 2002
* Fatigue and malaise
* Pain in joints involving multiple sites (wrist, knees, foot, and ankle)
* Myostitis and myalgia
* Chronic prostatitis
* Irritable bowel syndrome
* Gastro-esophageal reflux disease
* Asymmetric hearing loss
* Hematuria, Nephrolithiasis, and renal cysts 
* Surgical conditions and hospitalization for bilateral turbinoplasty, septoplasty, and endoscopic sinus exploration at age 36; and vasectomy

7.  On 22 September 2009, Dr./LTC J. T----r added an addendum to his
12 August 2009 memorandum.  He states the applicant was evaluated for rheumatology since submission of his medical summary.  Dr. W----n had diagnosed him with myofascial pain syndrome, chronic pain syndrome, and limited fibromyalgia.  He was taking multiple medications.

8.  The applicant submitted two VA rating decisions, dated 16 March 2010 and 18 May 2011.

	a.  The March 2010 decision awarded him service-connected disability compensation for hiatal hernia and gastro-esophageal reflux disease at the rate of 10 percent, left ear hearing loss at the rate of 0 percent, lumbar spine degenerative disc disease at the rate of 0 percent, nephrolithiasis at the rate of
0 percent, and renal cyst at the rate of 0 percent, all effective 2 December 2009.  The VA denied service-connection for 17 other conditions.

	b.  The May 2011 decision awarded him service-connected disability compensation at the rate of 30 percent for PTSD, effective 2 December 2009.

9.  The applicant also submitted a neuropsychological evaluation, conducted at The Haymount Institute, on 12, 19, and 26 April 2010, and 7 June 2010.  It consisted of a clinical interview, a screening of behavioral and family history, a 
battery of tests, and a mental status evaluation.  Based on this evaluation, at the present time, his diagnosis was as follows:

* Axis I: Alcohol dependence (active drinking in full remission), PTSD, chronic and severe
* Axis II: No diagnosis

* Axis III: Prostatitis with chronic pain, chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, bilateral mild hearing loss, and impaired left hand
* Axis IV: Stress related to family relationships and work, moderate

10.  The applicant further submitted:

	a.  A self-authored statement wherein he goes over his career overview and describes in details the horrors of combat, daily relentless pursuit of enemy targets, exposure to Soldiers being maimed, wounded, or killed.  He describes his feelings after his return from deployment: the tears, anger, anguish, anxiety, depression, nightmares, and sleepless nights.  He struggled and tried to block the images from his mind.  He constantly fought with his wife.  He took medications in the form of anti-depressants but those only added to his stomach pain.  He knew something was wrong with him and sought help.  He was diagnosed with fibromyalgia and he was placed on a high-dose regiment of anti-anxiety medicine.  At the time, he was not tested for PTSD or TBI.  He was assigned to a unit where things did not stop and there was no talk of such things. He was never sent to a mental test or evaluation.  He simply declined his promotion and got out of the Army.  This was a huge point of contention between him and his wife that led to several fights.  He refused to listen to her.  After he got out, the VA gave him service-connection for a non-mental condition.  After all, he did not know he had PTSD.  He then went to a private doctor who diagnosed him with severe PTSD.  He was also presented with an opportunity to participate in a PTSD treatment clinical trial.  He finally realized the reason he left the military was that this was his way of dealing with PTSD that he did not know he had at the time.  He realized all his symptoms came from PTSD and had been for several years.  He wanted to suffer in silence.  He participated in the treatment plan and he came back to his wife and family.  He knows his ongoing PTSD, coupled with the emotional damage his decision had created, was very hard at times.  He is doing better now.  He realizes PTSD is part of his life.  He concludes that the military should give him a medical retirement.  He is convinced that combat was the reason for his suffering and the suffering was the reason he decided to separate.  Although the clinical diagnosis came after his separation, the disorder had existed for years prior to his separation.

	b.  An undated statement from Sergeant Major T----s B-----t who states he has known the applicant since 2003.  He was one of the applicant's students and the applicant later became his team leader.  He remembers the applicant initially as a sharp individual who was able to retain a lot of information and mathematical formulas about explosives without the need of a calculator.  However, he gradually began to forget things -- something inconsistent with his character.  Although the applicant saw the doctor for chronic joint and muscle pain, the doctor could never tell what was wrong.  Then came a brutal combat deployment in 2005 and the applicant had multiple casualties between killed and/or wounded in action in his small group.  His follow on deployments were also filled with similar experiences.  His motivation level, physical ability, and general health were affected.  His mood began to change and his maladies increased.  Although the applicant got out of the Army abruptly despite his grade and years of service, they remained in contact even after his separation and they talk about his struggle with PTSD.

	c.  An unsigned statement from his brother, a retired MSG.  He states that having received a medical retirement from the Army for PTSD and TBI himself, he feels it helpful to present some of the facts of his own experience.  He was surprised when his brother (the applicant), a MSG who made the sergeant major list in 15 years and was only 2 months shy of pinning on his sergeant major rank, told him he was going to walk away from his career in the Army after 17 years.  He could have had a less stressful position within the Special Operations Command, but he was adamant about walking away.  He was in the midst of dealing with his own demons at the time.  It was obvious that getting out of the Army was the only way he could keep his sanity.  This was his way of dealing with PTSD.  He could not explain the mental and emotional state he was in at the time so he decided leaving the Army was the answer.  He had a rough deployment in 2005 and saw death in front of him.  He saw buddies getting killed or wounded, a vehicle getting blown up with 4 comrades getting killed, his roommate becoming a paraplegic, and he was on target with numerous body bombers.  It took being on the outside to guide the applicant to treatment.  Unfortunately, the PTSD diagnosis did not happen until a few months after he was separated.

	d.  A statement from the Chief of Operations, USSOCOM Care Coalition, dated 29 November 2012, who states he has known the applicant for nearly 3 years and he recalls dealing with his brother's case as he went through the medical retirement process and appeal of the presumption of fitness.  He is also familiar with the Special Mission Unit (SMU) that the applicant and his brother served in.  He is also familiar with several other wounded warriors who retired 
from SMU and he has witnessed at least two other cases that have been medically boarded but not diagnosed with PTSD.  He recalls giving advice to the applicant to get a behavioral health assessment based on his past history in combat and the SMU's operational tempo, and his abrupt and sudden decision to separate from the military with 17 years.  Operators as a whole are generally the last to ask because that is just the way they are trained.  Those who are weak are weeded out of the tribe.

	e.  An undated statement from the applicant's spouse.  They had been married for 14 years.  He completed his first combat tour in Iraq in 2005 and he came back a different person.  He was distant, angry, isolating, and lost in thought.  After multiple deployments, he decided to turn down his promotion and elected to separate from the military in a desperate effort to avoid dealing with those issues.  Despite her attempts to talk him out of getting out, he was adamant and had made up his mind that he was on an unstoppable mission to save himself from the grips of whatever was going on in his mind.  He took medications to mask his internal injuries that manifested as bizarre behavior.  The VA awarded him service-connected disability for only one condition.  This action made him furious and forced him to reach out to SOCCOM.  After hearing his story, they recommended his testing for TBI and PTSD and emphasized that this should have been before his separation.  The PTSD diagnosis came
5 months after his separation.  The diagnosis was there but there was no treatment by the VA.  Appointments would be set up and then cancelled or rescheduled.  They were not set up for a successful recovery or treatment.  This would lead him to withdrawal, isolation, and more irrational decisions.  His behavior was clearly a direct result of PTSD and his inability to understand how it was affecting him.  The fear and anxiety from his PTSD caused further withdrawal.

	f.  A statement from a retired MSG, dated 1 October 2012, who knew the applicant and served with him in combat.  He describes the applicant as in the top 1 percent in his career field.  His physical fitness and mental acuity were remarkable.  During their second deployment, he noticed dramatic changes in the applicant's behavior.  He was having difficulty sleeping and he became forgetful.  He was having a hard time understanding instructions regarding real life missions.  These changes became magnified after he (the author) was wounded in action that left him paralyzed from the waist down.  This same explosion also left four other Soldiers dead.  It was this event that was the straw that broke the camel's back.  He adds he was shocked when he learned the applicant was leaving the military.  It could be survivor's guilt or the injuries to and death of other team members.  He should have been examined for TBI and 
PTSD.  He attempted to cover the accumulations of the war and when he reached a certain point he believed his continued service was a detriment to the mission.  That is why he decided to separate.  He felt his injuries were insignificant compared to those maimed, wounded, or killed.  He was ashamed to seek treatment for what he perceived "inconsequential" invisible wounds.  He opines that the applicant purposely hid his injuries in part due to the culture and mindset that is necessary to get men like him to train and execute the deadly missions.

	g.  A statement Dr./LTC J. T----r, now the Deputy Surgeon for Clinical Services, USSOCOM, dated 1 November 2012.  He expresses remorse for how the "Army" handled the applicant's medical care and evaluation.  He admits some personal responsibility regarding the failure to recognize the applicant's medical condition and get him the help he needed.  He met the applicant in the summer of 2009, as he (the applicant) was transitioning out and questioned the reasons why he would leave with 17 years of service.  As he got to know the applicant better, he realized the applicant was a very stoic person who did not complain.  In hindsight, he sees the applicant having PTSD.  He went through his separation physical and it is clear PTSD is distinctly absent from his list of conditions.  After his separation, he remained in contact and began asking questions that hinted he was dealing with larger problems.  Much of the groundwork for PTSD was done after separation.  The organization improved the way it recognizes and treats symptoms of PTSD and he believes the applicant and his brother are part of that transformation.  The organization realized, just as the Army realized, that the Army often failed to diagnose PTSD and TBI.  He asks this Board to consider evaluating the applicant for a medical retirement.

11.  He submitted his service medical records that include chronological records of medical care, sick call slips, x-rays, vaccination record, enlistment physical, and other medically-related documents.  However, nowhere is there a:

* Permanent physical profile or finding of medical unfitness
* A finding of a medical condition that did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness)
* A diagnosis for referral to the Army Physical Disability Evaluation System (PDES) 
* A diagnosis of PTSD or any condition or injury that rendered him unable to perform the duties required of his grade and military specialty
* Commander's statement of inability to perform the duties required of his grade and military specialty 

12.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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.  

	a.  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. 

	b.  Paragraph 3-2b (processing for separation or retirement from active duty) states 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.  When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that:

		(1)  The Soldier was, in fact, physically unable to adequately perform the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.

		(2)  An acute, grave illness or injury or other significant deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty.

13.  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, disabilities are rated using the VA Schedule of Rating Disabilities (VASRD).  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. 

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

15.  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 higher 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.

16.  To determine medical standards for different jobs, and to ensure military members are medically qualified to perform the duties of that job, the military developed a medical profile indicator, known as the physical profile serial system. 
Since analysis of a Soldier's medical, physical, and mental status plays an important role in assignment and welfare, great care is executed in the functional grading.  The functions are considered under six factors designated as
P-physical capacity or stamina, U-upper extremities, L-lower extremities,
H-hearing and ears, E-eyes, and S-psychiatric (P-U-L-H-E-S).  A Soldier having a numeral designation of "1" under all factors is considered to possess a high level of medical fitness.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he suffered multiple illnesses and/or injuries during his military service, including PTSD.  A comprehensive review of his official records together with the evidence he provides does not support his contention.

2.  First, he underwent a separation physical on 11 August 2009 at Fort Bragg and the examining physician found him fully qualified for retention/separation.  He was assigned a P-U-L-H-E-S of "1-1-1-1-1-1."

3.  Second, his record is void of a permanent physical profile.  Even if there was one, a permanent physical profile does not translate to an automatic consideration by an MEB.  The key element in the disability system is the presence of a medical condition that renders a Soldier unable to reasonably perform the duties required of his/her grade and military specialty.  The applicant did not provide evidence that he was unable to perform the duties required of his grade and military specialty.

4.  Third, 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.  The applicant's service was not interrupted by a physical condition or medical necessity.  It was interrupted by his decision to decline promotion and continued service.

5.  Fourth, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the Soldier was, in fact, physically unable to adequately perform the duties of his/her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance 
and the unfitting medical condition or conditions or an acute, grave illness or injury or other significant deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty.

6.  Fifth, he contends, in effect, since the VA awarded him service-connected disability for PTSD, the Army should have done the same.  There are two important concepts that require clarification.

	a.  The Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and an award of a rating by another agency do 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.  The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.

	b.  If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation (emphasis added) and can only be accomplished through the PDES.  Only those conditions that render a member unfit for continued military duty at the time of separation will be rated.  However, the VA could potentially rate all service-connected conditions.

	c.  In the applicant's case, there was not a single condition actively limiting his ability to perform his military duties.  There was no diagnosis of any conditions that failed retention standards or were being disabling at the time of his separation.  Whenever there is a disability, 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.  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.  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.

7.  The statements provided by several individuals in support of his application are noted.  It is commendable of the authors to try to help a former comrade.  
However, none of the statements is supported by a clinical mental status evaluation that shows he was diagnosed with PTSD at the time of his voluntary separation from the Army or that he could not perform his duties.  There does not appear to be an error or an injustice in his case.  He has submitted insufficiently substantiating evidence or an argument that would show an error or injustice occurred in his case.

8.  In view of the foregoing, there is insufficient evidentiary 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)                                         AR20130001188



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ABCMR Record of Proceedings (cont)                                         AR20130001188



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