IN THE CASE OF:	

		BOARD DATE:	  12 February 2014

		DOCKET NUMBER:  AR20130005051 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of a previous application for correction of item 28 (Narrative Reason for Separation) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired with a disability rating of at least 50 percent (%).

2.  Counsel states, in effect, that he is providing new evidence and argument which should show why the applicant should have been medically retired from the Army for post-traumatic stress disorder (PTSD).  The Army failed to refer the applicant to a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB) as required by the Army Physical Disability Evaluation System (PDES).  Significant evidence from the time leading up to the applicant's discharge, from both military and civilian healthcare professionals, was included with the initial application.  The evidence demonstrates unequivocally that the applicant was suffering from severe and debilitating symptoms of PTSD as a direct result of his service in Iraq.  In support of this request, counsel is resubmitting the original documentation along with a new affidavit from the applicant. 

3.  Counsel argues:

* Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) states Soldiers with PTSD will not be processed for separation under paragraph 5-17, but will be evaluated under the PDES
* the lack of mental health records in the applicant's Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File (OMPF)) shows he was not referred to the Army PDES
* a Department of Veterans Affairs (VA) service-connected disability rating issued shortly after separation establishes that he suffered from a severe medical disability when he was separated from the Army

4.  Counsel provides a new affidavit from the applicant and the documents that were provided in the initial request, which consist of the applicant's affidavit, 15 exhibits, a DD Form 214, and medical records.

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 AR20110017380, on 22 March 2012.

2.  Counsel provides new arguments and evidence that warrant reconsideration by the ABCMR.

3.  The applicant enlisted in the Regular Army on 14 August 2001 for a 4-year term of service.  He completed training and was awarded military occupational specialty (MOS) 14S (Avenger Crewmember).  

4.  He was deployed to Kuwait/Iraq in support of Operation Iraqi Freedom during the period 1 March 2003 through 3 March 2004.

5.  A Standard Form 600 (Chronological Record of Medical Care), dated 29 June 2004, shows the applicant was a walk-in self-referral for post-deployment psychosocial assessment.  A licensed clinical social worker (LCSW) determined he would be referred to rule out PTSD and assessed for medication.

6.  A Psychiatric Evaluation, dated 13 July 2004, shows the applicant was referred to the Cumberland Hall Hospital (CHH) (a civilian psychiatric hospital) by an officer at Blanchard Army Community Hospital (BACH), Fort Campbell, KY.  The applicant was admitted to CHH on 12 July 2004 due to symptoms of PTSD as evidenced by him being unable to sleep, having visions and nightmares, and increased paranoia.  He was discharged on 22 July 2004 and his prognosis was poor.  A civilian doctor diagnosed:
* Axis I – PTSD
* Axis II – paranoid personality
* Axis III – status post left knee surgery
* Axis IV – psychological and environment problems: problems with primary support group and exposure to trauma
* Axis V - global assessment of functioning: current 50

7.  A DD Form 2807-1 (Report of Medical History), dated 10 August 2004, shows he underwent a medical examination for the purpose of separation under the provisions of Army Regulation 635-200, paragraph 5-17.  He indicated he had had a number of health problems.  Item 29 (Explanation of "Yes" Answer(s)) shows the applicant indicated he:

* had lung issues
* had lower back pain
* had his left knee "scoped"
* didn't feel right in his body and head
* had been diagnosed with PTSD, severe paranoia, and other symptoms
* had hearing that was going bad 

8.  A DD Form 2808 (Report of Medical Examination), dated 26 August 2004, shows in:

* item 74b (Physical Profile), he was given a temporary profile under category "P" (organic defects, strength, stamina, agility, energy, muscular coordination, and similar factors)
* item 77 (Summary of Defects and Diagnoses), the physician assistant (PA) who examined the applicant entered "Psychiatric PTSD" 

9.  In a memorandum, dated 13 September 2004, Major A_____ D______, Division Social Worker, stated the memorandum was written at the request of the applicant and was to be used as documentation of his mental health treatment at Division Mental Health (DMH), Fort Campbell, KY.  The applicant was seen at DMH on 7 July 2004 as a self-referral.  During his course of treatment, he was hospitalized at CHH where he was diagnosed with PTSD and paranoid personality disorder.  He was prescribed psychotropic medicines, which he took as part of his treatment.

10.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation processing, to include a mental status evaluation and formal counseling.  However, his DD Form 214 shows he was honorably discharged on 8 October 2004 under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of "PHYSICAL CONDITION, NOT A DISABILITY" at the grade of specialist/E-4.  His characterization of service was honorable after completing 3 years, 1 month, and 25 days of creditable active service.  His DD Form 214 shows he was awarded the "Army Commendation Medal with Combat Distinguishing Device 'V.'"

11.  His complete service medical records are not available for review.

12.  A VA Rating Decision, dated 1 February 2005, shows he was awarded service-connected disability ratings for:

* PTSD – 70%
* lumbosacral strain – 10%
* left patellofemoral pain syndrome – 10%
* right patellofemoral pain syndrome – 10%
* tinnitus – 10%

13.  A VA Rating Decision, dated 17 January 2008, shows his 70% disability rating for PTSD was increased to 100%.

14.  On 26 October 2010, the Army Discharge Review Board (ADRB) denied the applicant's request for a change of his narrative reason for separation.

15.  Counsel provides an affidavit from the applicant, dated 3 February 2013.  

	a.  The applicant states that shortly after his return from Iraq, he began to have nightmares of a mass grave and flashbacks that included the smell of rotting corpses.  He sought treatment at DMH.  He received outpatient treatment and was prescribed medication to treat the PTSD.  On 12 July 2004, he suffered a hallucination episode near BACH.  He states, "The hallucination seemed very real and I reacted by establishing a 'checkpoint' where I began to stop and search vehicles in the vicinity of the hospital."  He was taken to CHH where he was diagnosed with PTSD and paranoid personality.  He was admitted to CHH, and after 11 days of treatment he was discharged.  The physician who oversaw his treatment determined his prognosis was "poor."   

	b.  He continued to take his medication and followed his treatment program.  As a result of his hospitalization and continuing symptoms, he was not permitted nor was he able to perform his normal duties.  He was ordered to spend each day sitting in the commander's office so the commander could keep an eye on him.  In August 2004, his commander told him he would be discharged from the military as a result of the severity of his PTSD symptoms.

	c.  He underwent a physical examination for his separation, and he reported a number of physical problems.  He also identified his mental health issues as the principal source of his problems.  The PA who examined him indicated PTSD was his diagnosis.  Due to the physical and mental issues that were the direct cause of him being separated, his case was never referred to be processed through the Army PDES for a determination of whether his medical condition fell below medical retention standards of the Army.  He was not afforded an MEB review of his medical condition.   

16.  Army Regulation 40-501 (Standards of Medical Fitness) provides medical fitness standards for induction, enlistment, appointment, and retention, and related policies and procedures.  Paragraph 3-33 states anxiety, somatoform, or dissociative disorders are cause for referral to an MEB under one of the following conditions:

	a.  persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or

	b.  persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or

	c.  persistence or recurrence of symptoms resulting in interference with effective military performance).  

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 or her office, grade, rank, or rating.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

18.  Chapter 4 of Army Regulation 635-40 contains guidance for processing through the PDES, which includes convening an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 5-17 of the version of the regulation in effect at the time of the applicant's discharge provided for separation on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  Paragraph 5-17a(8) stated such conditions included disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired.  A recommendation for separation must have been supported by documentation confirming the existence of the physical or mental condition.  The regulation required a medical examination and mental status evaluation for Soldiers being processed for separation under paragraph 5-17.

	b.  On 17 December 2009, the regulation was revised.  The revised version expanded paragraph 5-17 to include the following as paragraph 5-17a(9):

Other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired.  Soldiers with 24 months or more of active duty service may be separated under this paragraph based on a diagnosis of personality disorder.  For Soldiers who have been deployed to an area designated as an imminent danger pay area, the diagnosis of personality disorder must be corroborated by the Medical Treatment Facility (MTF) Chief of Behavioral Health (or an equivalent official).  The corroborated diagnosis will be forwarded for final review and confirmation by the Director, Proponency of Behavioral Health, Office of the Surgeon General (DASG-HSZ).  Medical review of the personality disorder diagnosis will consider whether PTSD, Traumatic Brain Injury (TBI), and/or other comorbid mental illness may be significant contributing factors to the diagnosis.  If PTSD, TBI, and/or other comorbid mental illness are significant contributing factors to a mental health diagnosis, the Soldier will not be processed for separation under this paragraph, but will be evaluated under the physical disability system in accordance with AR 635-40.

(a) The condition of the personality disorder is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier’s ability to perform duty.  (exceptions: combat exhaustion and other acute situational maladjustments.)  The diagnosis of personality disorder must have been established by a psychiatrist or doctoral-level clinical psychologist with necessary and appropriate professional credentials who is privileged to conduct mental health evaluation for the DOD components.  

(b) In the case of Soldiers who are, or have been, deployed to an area designated as imminent danger pay area, the diagnosis of a mental condition not amounting to disability will be reviewed by the installation MTF Chief of Behavioral Health, or the equivalent, and confirmed by the Director, Proponency of Behavioral Health, Office of The Surgeon General (DASG-HSZ).

DISCUSSION AND CONCLUSIONS:

1.  The record shows that, after returning from a tour of duty in Kuwait/Iraq during which he was awarded the Army Commendation Medal with "V" Device, the applicant self-referred for a post-deployment psychosocial assessment.  Shortly after his assessment, he was admitted to a civilian psychiatric hospital and he was diagnosed with PTSD and paranoid personality.  

2.  His separation medical examination shows he reported having been diagnosed with PTSD and a PA noted this psychiatric diagnosis.  There is no evidence, however, that the PA referred him for further evaluation based on this condition.  The PA did not note any disorders manifesting disturbances of perception, thinking, emotional control or behavior.  Unfortunately, there is no record of the mental status evaluation he would have been required to undergo in conjunction with his separation under Army Regulation 635-200, paragraph 5-17. 

3.  It is noted that the VA granted the applicant a 70% service-connected disability rating for PTSD in January 2008, approximately 3 months after he was discharged and less than a year after he returned from his tour in Kuwait/Iraq.

4.  The preponderance of evidence in this case indicates he was separated based on his diagnosis of paranoid personality, a disorder that appears to have manifested disturbances of perception, thinking, and behavior in the applicant.  What the evidence fails to establish is the degree to which PTSD contributed to his overall condition.  

5.  At the time of his discharge, the governing regulation did not provide clear guidance on addressing Soldiers like the applicant who had PTSD in conjunction 
with a condition warranting discharge under Army Regulation 635-200, paragraph 5-17.  A later version of the regulation specified that Soldiers who had been deployed would not be processed for separation under this paragraph if PTSD was determined to be a significant contributing factor to a mental health diagnosis.  These Soldiers are to be evaluated under the PDES.

6.  The available evidence indicates there was a basis for referring him to the PDES in 2004, and any doubt regarding his eligibility for PDES processing should have been resolved in his favor.  Had the events in this case transpired after 2009, it is almost certain that he would have been referred to the PDES.  Accordingly, as a matter of equity he should now be afforded the opportunity to be processed through the PDES for a determination of fitness.

7.  Counsel requests that the applicant be medically retired with a disability rating of at least 50%.  To do so would be premature.  If warranted based on MEB/PEB findings, the proper authority will direct such action be taken.

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 partial amendment of the ABCMR’s decision in Docket Number AR20110017380, dated 22 March 2012.  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.  

	a.  In the event 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.

	b.  All required reviews and approvals will be made subsequent to completion of the formal PEB.

	c.  If a determination is made that he should have been separated through the PDES, these Proceedings serve as the authority to:
      
* void his administrative discharge 
* issue the appropriate disability separation 
* pay him all back retired/severance 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 correcting the applicant's narrative reason for separation of his DD Form 214 to show he was medically retired with a disability rating of at least 50%.



      _____________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)                                         AR20110017380



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130005051



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1