IN THE CASE OF:	  

		BOARD DATE:  26 March 2014

		DOCKET NUMBER:  AR20130003908 


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 her earlier request for correction of her records to show: 

* she was medically retired by reason of disability due to post-traumatic stress disorder (PTSD) and sleep apnea instead of being released from active duty due to completion of required service in November 2008
* she completed 1 year, 8 months, and 8 days vice 1 year, 3 months, and 8 days of foreign service

2.  The applicant states:

* her DD Form 214 (Certificate of Release or Discharge from Active Duty) did not account for her foreign service from 9 September 2006 to 25 January 2007
* the Board did not address the guidance that Soldiers with 17 years of service are entitled to a medical retirement after 15 years
* the trauma that precipitated the symptoms of PTSD happened in Southwest Asia, in a combat zone, while she was on active duty
* the Board should be aware of what PTSD is and how it affects combat veterans who have been exposed to trauma for an extended period of time, in her case 34 years of total service
* a psychological problem is harder to assess and treat because it is unseen by the naked eye until it starts to affect the body
* her U.S. Army Reserve (USAR) commander did not exercise due process and care in regard to her release from active duty
* the Department of Veterans Affairs (VA) determined service connection for hypertension and PTSD, all occurred in service or were aggravated by her military service 
* there was no consideration given to the fact that she completed two back-to-back combat tours with a 3-month break, totaling 20 months
* despite the medical evidence, documentation, and doctor's assessment, she was not properly diagnosed with PTSD; her own admission that she did not have PTSD is irrelevant
* she continues to receive counseling due to the ills of the war and her 34 years of military service
* the comments from her civilian doctors in 2008, who were never deployed, did not consider or expound on her 20-month deployment
* she exhibited symptoms of PTSD, depression, work-related issues, headaches, irritable bowel syndrome, fatigue, anxiety, and she had more frequent panic attacks

3.  The applicant provides:

* Orders 201-09, dated 20 July 2006
* DD Form 1610 (Request and Authorization for Temporary Duty (TDY) Travel of DOD Personnel)
* Multiple Travel Vouchers
* Multiple Leave and Earnings Statements (LES)
* DA Form 67-9 (Officer Evaluation Report)
* DD Form 214, ending on 8 November 2008
* DD Form 215 (Correction to DD Form 214)
* Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points)
* Extract of DOD Instruction Number 6040-44 (Lead DOD Component for the Physical Disability Board of Review (PDBR))
* Extract of a court case (Sabo versus United States)
* Orders 09-197-00003 (Retired Reserve)
* VA rating decision, dated 3 June 2011
* Army Board for Correction of Military Records (ABCMR) Docket Number AR 2011001077
* Post-retirement medical records (Nextcare, MinuteClinic, Potomac Hospital)
* Post-retirement medical documents (Renewing Hearts, Susan Tucker, Sleep Disorder Center of Virginia)
* Post-retirement VA progress notes
* Post-retirement U.S. Department of Labor Certificate of Healthcare Provider
* Correspondence from the VA
* Citation for the Defense Meritorious Service Medal
* Memorial Services Flyers
* Email exchange

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 ABCMR in Docket Number AR20110010777, on 7 February 2012. 

2.  The applicant provides a new argument which was not previously considered. As such, it warrants consideration by the Board. 

3.  The applicant's records show she was born in December 1957.  

4.  Having had prior enlisted service in the Army National Guard (7 July 1975 to 28 June 1980), the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 29 June 1980.  She served in a variety of assignments and she was promoted to lieutenant colonel (LTC) on 
8 February 2001.  

5.  On 6 August 1998, the U.S. Army Reserve Personnel Command (now the U.S. Army Human Resources Command (HRC)), St. Louis, MO, issued her a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

6.  She was ordered to active duty on 15 September 2004 for Contingency Operations - Temporary Tour of Active Duty (CO-TTAD) for a period of 179 days, terminating on 12 March 2005.  She was assigned to the U.S. Army Element, Defense Logistics Agency (DLA) Fort Belvoir, VA. 

7.  On 15 February 2005, Headquarters, USAR Readiness Command, Fort Jackson, SC, published Orders 06-046-00015 ordering her to active duty as a member of her Reserve unit in support of Operation Enduring Freedom for 365 days.  The orders were amended on 16 December 2005 to show 545 days. 

8.  On 5 April 2006, HRC issued Orders A-04-609099 ordering her to active duty for a period of 2 years to fulfill active duty requirements in accordance with Contingency Operations - Extended Active Duty Program (CO-EAD) beginning on 9 September 2006 and terminating on 7 September 2008. 

9.  On 20 July 2006, the Directorate of Military Personnel, Fort Belvoir, VA, published Orders 201-09 reassigning her to the DLA Customer Service Team, Camp Arifjan, Kuwait, for 179 days.  She was ordered to report to the CONUS Replacement Center at Fort Bliss, TX, on 8 July 2006 and report to Kuwait on 24 July 2006. 

10.  She provides DD Forms 1610, pay vouchers, LESs, and OER. 

	a.  She was issued a DD Form 1610 on 31 May 2006 authorizing her TDY travel for 179 days, beginning on or about 8 July 2006,  from Washington, DC, to Fort Bliss, TX, to Kuwait, and return through Fort Bliss, TX, to Washington, DC.

	b.  She was issued a second DD Form 1610, dated 4 October 2006, amending the previous DD Form 1610, authorizing her TDY travel for 185 days, beginning on or about 8 July 2006,  from Washington, DC, to Fort Bliss, TX, to Kuwait, and return through Fort Bliss, TX, to Washington, DC.

	c.  Travel Voucher, dated 3 October 2006, showing she was in a TDY status in Kuwait from 26 July to 30 September 2006. 

	d.  Travel Voucher, dated 9 November 2006, showing she was in a TDY status in Kuwait, from 1 to 31 October 2006.

	e.  Travel Voucher, dated 10 January 2007, showing she was in a TDY status in Kuwait, from 11 to 31 December 2006. 

	f.  LES for the months of October, November, and December 2006, and January 2007, confirming her receipt of hazardous fire/imminent danger pay (HF/IDP) from 9 September 2006 through 31 January 2007.

	g.  OER for the rating period 8 January 2007 through 7 January 2008, showing she was assigned to the Theater Consolidation and Shipping Pont, Camp Arifjan, Kuwait, during this period.  

11.  Previously, an email from the Defense Finance and Accounting Service (DFAS) confirmed she received hazardous fire pay/imminent danger pay (HF/IDP) and combat zone tax exclusion (CZTE) from 25 July 2006 to 8 September 2006 and from 22 April 2007 to 15 June 2008.  A second email verification was received from DFAS on 18 March 2014 confirming the applicant received HF/IDP and CZTE for service in Kuwait from 25 July 2006 to 8 September 2006.  


12.  Previously, the applicant submitted a memorandum, dated 26 September 2006, Subject: Certification of Arrival, stated the applicant reported for duty to the Defense Logistics Agency Contingency Support Team in Kuwait on 25 July 2006. 

13.  On 11 August 2008, the applicant requested a 365-day extension on active duty under Contingency Operations – Active Duty for Operational Support.  However, her request was disapproved.

14.  On 8 September 2008, her request for extension on active duty for the purpose of expending her accrued leave and out-processing was approved.  HRC assigned her a release from active duty date of 8 November 2008.

15.  On 8 September 2008, U.S. Army Garrison, Fort Belvoir, VA, published Orders 252-0001 releasing her from active duty "not by reason of physical disability" and reassigning her to a USAR unit effective 8 November 2008.

16.  She was honorably released from active duty on 8 November 2008, in accordance with chapter 2, Army Regulation 600-8-24 (Officer Transfers and Discharges) by reason of completion of required service.  Her DD Form 214 as amended by her DD Form 215 shows in:

* Item 12f (Foreign Service) - "0001-03-08"
* Item 18 (Remarks) - "Service in Kuwait from 20060725 to 20060908 and 20070422 to 20080618" 

17.  During her active duty service, she received the following OERs:

	a.  Annual, 18 June 2005 through 17 June 2006, no profile is noted; she passed the APFT and met the height and weight standards; her rater rated her performance as "Outstanding Performance – Must Promote" and her Senior Rater rated her performance/potential as "Best Qualified/Center of Mass."

	b.  Change of Rater, 18 June 2006 through 7 January 2007; no profile is noted; she passed the APFT and met the height and weight standards; her rater rated her performance as "Outstanding Performance – Must Promote" and her Senior Rater rated her performance/potential as "Best Qualified/Center of Mass."

	c.  Annual, 8 January 2007 through 7 January 2008, no profile is noted; she passed the APFT and met the height and weight standards; her rater rated her performance as "Outstanding Performance – Must Promote" and her Senior Rater rated her performance/potential as "Best Qualified/Center of Mass."

	d.  Change of Rater, 8 January 2008 through 5 May 2008; no profile is noted; she passed the Army Physical Fitness Test (APFT) and met the height and weight standards; her rater rated her performance as "Outstanding Performance – Must Promote" and her Senior Rater rated her performance/potential as "Best Qualified/Center of Mass."  

18.  She was released from her current assignment and transferred to the Retired Reserve in the rank of LTC on 16 July 2009 by reason of maximum authorized years of service.  Her ARPC Form 249-E shows she completed 34 years of service. 

19.  Her service records contain multiple Standard Forms 600 (Chronological Record of Medical Care) ranging during 2008/2009 as follows: 

	a.  SF 600, dated 19 August 2008, which shows she was seen in an outpatient status on a walk-in basis at the Psychology Clinic.  She reported she was having a hard time coping with her separation from deployment as a reservist.  She had been told she would be going back to the civilian sector in a few weeks and she had financial concerns.   Her diagnosis is listed as "Adjustment Disorder."  The provider discussed medications and released her to duty without limitations. 

   b.  SF 600, dated 4 September 2008, which shows she was seen at the Psychiatry Department, Dewitt Army Hospital, Fort Belvoir, VA, for fatigue and feeling tired.  The provider noted her anxiety and depression.  Her diagnosis was that of "Adjustment Disorder with Depressed Mood."  She was released to duty without limitations.  The provider offered therapy to help her in her transition phase and she agreed to come back within a week. 

	c.  SF 600, dated 28 January 2009, which shows she stopped by for a refill.  This form also shows her diagnosis as "Adjustment Disorder with Depressed Mood." 

	d.  SF 600, dated 19 February 2009, which shows she was seen for a follow-up.  She reported feeling better after taking her medications.  Her main problem is listed as adjustment disorder with depressed mood.  She was released to duty without limitations. 

	e.  SF 600, dated 16 March 2009, which shows she was seen in an outpatient status for a fitness for duty examination.  Her diagnosis is listed as uncontrolled systemic hypertension, myopia, adjustment disorder with depressed mood, overweight, and left ventricular hypertrophy.  The provider discussed medications, follow-up, treatment and alternatives, and side effects of medications.  The provider released her to duty without limitations.

	f.  SF 600, dated 24 March 2009, which shows she was seen for a post overnight sleep study.  The provider discussed the treatment options and listed her primary diagnosis as sleep apnea, obstructive.  The provider released her to duty without limitations. 

	g.  SF 600, dated 28 April 2009, which shows she was seen for a follow-up.  She reported a decreased in her mood over the past few weeks as she tried to facilitate stable income and/or a job.  Her main issue was depression.  The provider explained the medications, treatment, follow-up, and released her to duty without any limitations. 

20.  She has submitted multiple VA progress notes and rating decision(s) as well as several post-service medical documents from various providers and/or clinics as discussed/mentioned in the previous Record of Proceedings. 

21.  She also provides an extract of DODI Number 6040-44, dated 27 June 2008. The purpose of this DODI is to establish policy, assign responsibilities, and provide instructions for the PDBR operation and management.  The PDBR is designed to reassess the accuracy and fairness of the combined disability rating assigned to service members who were discharged unfit with a combined disability rating of 20 percent or less and were found eligible for retirement   

22.  She further provides a legal brief pertaining Sabo v. United States.  Sabo v. United States is a class action lawsuit brought by an organization on behalf of seven veterans from the Army, Navy, Marine Corps, and Air Force.  The seven veterans were discharged from military service as a result of a finding by a Physical Evaluation Board (PEB) that they were unfit for continued active duty service due, at least in part, to PTSD, and were assigned a disability rating for PTSD of less than 50%.  The lawsuit alleged that the military services violated the law by failing to assign a 50% disability rating to those discharged for PTSD – a disability rating that entitles the veteran to disability retirement benefits.  As a result of the class action and the settlement, the U.S. military agreed to pay lifetime disability retirement benefits to 1,029 veterans with PTSD who were denied these benefits upon discharge from the military following wartime service in Iraq or Afghanistan.  To remedy the violations, these veterans will receive various benefits through the settlement:

23.  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, HRC, is responsible for administering the Physical Disability Evaluation System (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 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.

24.  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, the PEB rates all disabilities using the 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her foreign service is inaccurate and her release from active duty should be changed to a medical retirement.  In support of her contention, she raises several arguments as explained below. 

2.  With respect to the foreign service:  

	a.  The Board previously determined there was sufficient evidence to support completion of 1 year, 3 months, and 8 days of foreign service.  This was based on a verification of her pay records that reflect she received ID/HFP and CZTE from 25 July 2006 to 8 September 2006 and from 22 April 2007 to 15 June 2008. 

	b.  Although DFAS again confirmed her receipt of ID/HFP and CZTE for service in Kuwait from 25 July 2006 to 8 September 2006, the applicant provided TDY travel orders, military pay vouchers, and LES that confirm she received ID/HFP and CZTE for service in Kuwait from 25 July 2006 to on or about 26 January 2007.

	c.  The applicant should be entitled to correction of her DD Form 214 to show completion of 1 year, 8 months, and 8 days of foreign service in Kuwait from 25 July 2006 to 26 January 2007 and from 22 April 2007 to 15 June 2008.


3.  With respect to the medical retirement:  

	a.  None of the applicant's service medical records show anywhere that she was diagnosed with PTSD at any time during her military service.  There is no diagnosis of this condition by a competent medical authority.  Likewise, there is no physical profile for this condition or any other medical condition. 

	b.  Medical retirement requires adjudication for a process known as the PDES.  Referral to the Army PDES requires that a designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  There is no evidence to show she had:

* a permanent physical profile
* a diagnosis of a disabling condition that rendered her unable to perform the duties required of her specialty or grade
* a medical examination that warranted her entry in the PDES

	c.  She erroneously assumes that since she was mobilized and was seen for anxiety and depression she must be disabled.  However, referral to the Army PDES requires that a designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Her OERs clearly show she was capable of performing her duties.

	d.  She brings up the PDBR but does not articulate how the PDBR applies to her case.  The PDBR is designed to reassess the accuracy and fairness of the combined disability rating assigned to service members who were discharged as unfit with a combined disability rating of 20 percent or less and were found eligible for retirement.  She was neither considered by an MEB/PEB nor was she assigned any rating.  

	e.  She also brings up the Sabo lawsuit but again does not articulate how that applies to her.  The law suit applies to certain individuals who were discharged from military service as a result of a finding by a PEB that they were unfit for continued active duty service due, at least in part, to PTSD.  She was never found unfit by any board, let alone assigned a rating.  

	f.  She further argues that the VA awarded her service-connected disability compensation.  However, the Army, VA (or Social Security Administration) disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an 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 for example may award ratings because a medical condition is 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.

	g.  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 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.  

	h.  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.

	i.  She argues that she completed over 15 but less than 20 years of service and should receive a medical retirement.  Her argument is rejected. 

		(1)  A member of the Selected Reserve of a Reserve Component (RC) who is medically disqualified for continued service in an RC may be considered as having met the service requirement and may be issued a 15-Year Letter if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement purposes.  The applicant had already completed 20 qualifying years of service and was in fact issued a 20-Year Letter in 1998.  

		(2)  The applicant was not released from active duty or transferred to the Retired Reserve for any medical reason.  She was released from active duty by reason of completion of her required service.  Furthermore, she was transferred to the Retired Reserve because she reached the maximum years of service.  As such, she does not meet the statutory or regulatory requirements for the issuance of a 15-year letter. 

	j.  After a comprehensive review of the evidence of record and the evidence provided by the applicant, there does not appear to be an error or an injustice in her case.  In view of the circumstances in this case, she remains not entitled to the requested medical discharge or retirement. 



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 of the ABCMR’s decision in ABCMR set forth in Docket Number AR20110010777, dated 7 February 2012.  As a result, the Board recommends that all Department of the Army records of the individual concerned be further corrected by voiding her previously-issued DD Form 215 and issuing her a new DD Form 215 that shows in item:  

* 12f (Foreign Service) – "0001-08-08"
* 18 (Remarks) the entry "Service in Kuwait from 20060725 to 20070126 and 20070422 to 20080615"

3.  The evidence presented does not demonstrate the existence of a probable error or injustice in relation to the medical retirement or discharge.  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 AR20110010777, dated 7 February 2012




      _______ _  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)                                         AR20130003908





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