BOARD DATE:	  23 April 2014

		DOCKET NUMBER:  AR20130014433 


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 his request, statement, and evidence to counsel. 

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant be placed in the Integrated Disability Evaluation System (IDES) for the purpose of determining his unfitting condition and percentage of disability. 

2.  In an effort to clearly articulate the issue at hand, the staff of the Army Board for Correction of Military Records (ABCMR) clarifies the IDES and identifies the key players in the applicant's case. 

	a.  IDES:  Directive-Type Memorandum 11-015 - IDES, issued by the Under Secretary of Defense on 19 December 2011, explains the IDES.  The Department of Defense (DOD) and Department of Veterans Affairs (VA) worked together to create IDES to integrate the processes DOD and VA formerly executed separately.  This streamlined process makes disability evaluation seamless, simple, fast and fair.  DOD uses the IDES to determine a service member’s fitness for duty.  If the service member is found medically unfit for duty, the IDES gives them a proposed VA disability rating before they leave the service.  The proposed rating informs the service member of the approximate amount of compensation and benefits they will receive from the VA. Through the IDES process, Physical Evaluation Board Liaison Officers (PEBLOs) guide service members through the entire IDES process to ensure they are aware of their options and the many decisions they, or their families, need to make.  VA Military Service Coordinators (MCSs) help service members file their VA benefits claim before they leave the service so they can get their benefits as soon as possible after they separate from the service.

	b.  The key players in this case are: 

* Major (MAJ)/Dr. P. M--in, Chief, Behavioral Health Department, Irwin Army Community Hospital (IACH), Fort Riley, KS
* MAJ D. C-----y, Chief, IACH Behavioral Health Clinic, Fort Riley
* Dr. R. H------s, Staff Psychiatrist, IACH, Fort Riley
* Dr. M. F------B---------ge, Staff Psychiatrist, IACH, Fort Riley
* Dr. D. P--e, Staff Psychiatrist, IACH, Fort Riley
* Colonel (COL)/Dr. C. W--b, IACH Deputy Chief of Clinical Services (DCCS)

	c.  The Diagnostic and Statistical Manual of Mental Disorders defines the multi-axial system for assessment.  The five-axis model is designed to provide a comprehensive diagnosis that includes a complete picture of not just acute symptoms but of the entire scope of factors that account for a patient's mental health.  

		(1)  Axis I (Clinical Disorders) is the top-level of the DSM multi-axial system of diagnosis.  It represents acute symptoms that need treatment; Axis I diagnoses are the most familiar and widely recognized (e.g., major depressive episode, schizophrenic episode, panic attack). 

		(2)  Axis II (Personality Disorder and Intellectual Disability) is for assessing personality disorders and intellectual disabilities.  These disorders are usually life-long problems that first arise in childhood, distinct from the clinical disorders of Axis I which are often symptomatic of Axis II.  For example, an adult patient might have depression (an Axis I disorder) that is largely a result of a paranoid personality disorder (an Axis II disorder).

3.  Counsel states the Army failed to properly dispose the applicant and as a result he was not placed in the IDES and was thereafter involuntarily discharged due to being twice non-selected for promotion to captain (CPT).  Counsel makes the following argument: 

	a.  The applicant received a notification of separation due to non-selection for promotion reflecting a separation date of 1 March 2013.  He had been assigned to the Warrior Transition Unit (WTU) at Fort Riley, KS.  A medical evaluation board (MEB) had been initiated on 10 August 2011.  The processing was undermined when a psychiatrist at Fort Riley took it upon himself to declare that the MEB was not correct.  The informal physical evaluation board's (PEB) reliance upon this Fort Riley psychiatrist found that the applicant's conditions existed prior to service (EPTS) and derived from a personality disorder and alcohol dependence.  Accordingly, the PEB did not rate applicant and all processing stopped.

	b.  This was a classic case of Axis I versus Axis II diagnoses on the one hand and the abuse of the IDES system by a physician at Fort Riley on the other.  On 30 August 2012, his (counsel) firm sent to The Surgeon General (TSG) of the Army a document that described in detail the concerns over the conduct of the Fort Riley medical staff.  The procedural error here was the failure of the PEB to give the applicant an opportunity to rebut the assertion that he was principally suffering from alcohol dependence and a personality disorder.

	c.  An MEB was signed off on which showed Depressive Disorder, Not Otherwise Specified (NOS) and Generalized Anxiety Disorder as not meeting retention standards and not EPTS.  There is no mention of a Personality Disorder.  The applicant reviewed the MEB and commented.  However, the communication between the PEB at Fort Lewis and the psychiatrist at Fort Riley is where the mischief begins.  The Fort Riley psychiatrist undermined the MEB, declaring that alcohol and personality disorder were the real issues.  The Board should note that this psychiatrist, MAJ M---in, was also a participant in the medical board, which is a jaw-dropping conflict.

	d.  The DCCS at Fort Riley joined in this charade by declaring the MAJ M---in email to be legitimate.  The PEB went along with this course by not rating the MEB conditions due to an email the applicant had never seen.  On 29 September 2011, Dr. D. P-le and Dr. M. F-----B---------e vigorously supported the Axis I diagnosis and dismissed the Axis II and alcohol dependence argument.  One month later with obvious pressure from MAJ M---in they totally reversed themselves.  Counsel made two blunt and direct attempts to get someone to recognize the fiasco that was Fort Riley mental health.  Ultimately there were two failures of the IDES process.  Dr. L----d R---z, the VA doctor, wrote the MEB Narrative Summary (NARSUM).  The Fort Riley Department of Psychiatry wrongly interfered with that process by countermanding Dr. R----z's NARSUM and leaving the question of a correct diagnosis open to debate and not permitting the applicant to rebut the conflicted diagnoses of alcohol dependence and personality disorder.

	e.  As a consequence, the applicant was denied fundamental due process and the issue of a proper diagnosis very much in question.  In addition to these concerns and in furtherance of demonstrating that an Axis I diagnosis is proper, counsel states he provides the following information which postdates the MEB.  On 9 January 2013, the applicant attempted suicide by stabbing himself in the abdomen, requiring surgery.  After spending a month in a civilian psychiatric ward, the discharge instructions included a diagnosis on Axis I of "Major Depressive Disorder, Recurrent, Severe without Psychotic Features."  On Axis II he was diagnosed with Personality Disorder NOS.  He was prescribed antidepressants.  On 14 February 2013, Fort Riley confirmed the applicant's diagnosis as Depressive Disorder and PTSD.  Virtually every physician except MAJ M---in from Fort Riley who has seen and diagnosed the applicant agrees that he suffers from an Axis I disorder that renders him unfit for duty.  The Board should see the exhibits from Dr. Sh----a T----m, dated 27 October 2011, and Dr. L----ka R------ra, dated 27 September 2011.  In October 2012, the applicant had electroshock therapy for his severe depression for the principal diagnosis of "Major Depression."

	f.  How there can be doubt that the applicant did not meet retention standards due to an Axis I disorder is simply unbelievable.  On 4 February 2013, counsel for applicant requested a copy of the Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) done with respect to the applicant's IDES processing.  The AR 15-6 investigation found that the applicant was properly diagnosed with a personality disorder and that there were no procedural irregularities.  The document is an embarrassing whitewash and should be ignored.  Counsel points out the following:

		(1)  The AR 15-6 report confirms that Dr. M---in was a participant in the original MEB which found that the applicant was unfit due to Depressive Disorder and Generalized Anxiety Disorder. 

		(2)  There is no explanation as to why Dr. M---in changed his position by alleging that personality disorder and alcohol dependence were causative of the applicant's failure to meet retention standards. 

		(3)  Dr. P--e and Dr. F-----ud-B---------ge disagreement with the position of Dr. M---in is dismissed as Dr. P--e later admitted he was a "rookie" regarding writing MEBs and that the original report he wrote was an incomplete representation of [Applicant's] condition.  Dr. F-----ud-B---------ge countersigned the memorandum written by Dr. P--e, relying on his judgment which she trusted.  

		(4)  The above pathetic justification is disgraceful coming from two supposed professionals as it is.  Then to add insult to injury these two providers signed a document which stood in direct conflict with their earlier opinion. 

		(5)  The AR 15-6 report suggests that the applicant's denial of an opportunity to address the action of the PEB for election as provided for in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-20e was perfectly fine.  "While the regulation does not expressly provide for this action, [Applicant] suffered no adverse effect because the result of the action was to terminate the process and return him to full duty."

		(6)  What utter nonsense this is.  The applicant was denied an opportunity to challenge the fitness finding within the PEB system.  That PEB was halted at the request of the military treatment facility (MTF) DCCS.  This was the same DCCS who approved the initial MEB.  The fact is this information regarding the personality disorder and alcohol dependence did not exist within the MEB NARSUM, yet these diagnoses were used to terminate the MEB processing.  At no time did the applicant have an opportunity to challenge these diagnoses.

	g.  The AR 15-6 is unreliable and excuses inexcusable conduct and incompetence.  Relief should be granted.

4.  Counsel provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 1 March 2013
* Officer Record Brief
* Notification of Separation Due to Non-Selection for Promotion
* Counsel's previous legal brief, dated 10 August 2012 to TSG, Deputy TSG, and IACH
* DA Form 3947 (MEB Proceedings), dated 10 August 2011
* NARSUM, dated (transcribed) 5 July 2011
* DA Form 7652 (PDES Commander's Performance and Functional Statement)
* DA Form 3349 (Physical Profile)
* Applicant's concurrence statement to the MEB
* Email exchange
* Approval to submit additional medical documentation
* DA Form 199 (PEB Proceedings), dated 31 August 2011
* Discharge in Intensive Outpatient Program
* Report of Initial Evaluation
* Memorandum from Dr. P-le and Dr. F-----ud-B---------ge
* Clarification by the Fort Riley Behavioral Health MEB Staff
* Email from counsel
* Emergency Department Report and discharge instructions
* DD Form 689 (Individual Sick Slip)
* Letter from Dr. Sh----a   T----m, dated 27 October 2011
* Letter from Dr. L----ka R------ra, dated 27 September 2011
* Electro-conclusive Therapy History and Physical
* Another letter from counsel dated 4 February 2013 to TSG and Staff Judge Advocate
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officer) and allied documents and reviews
* Chronological Records of Medical Care
* Sworn Statements
* Psychiatric MEB, dated 4 May 2010, 11 May 2010, 6 December 2010, and 4 January 201
* DA Form 5889 (PEB Referral Transmittal Document)
* Email from Dr. M---in
* Request for and approved request to administratively terminate applicant's case
* Post-discharge VA progress notes
* Letter from the Social Security Administration
* VA rating decision

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Regular Army commissioned officer and executed an oath of office on 31 July 2008.   He completed the Armor Basic Officer Leader Course.  

2.  He was assigned to Headquarters and Headquarters Company, 1st Battalion, 18th Infantry, 2nd Heavy Brigade Combat Team, 1st Infantry Division, Fort Riley, KS.  He was promoted to first lieutenant on 31 January 2010. 

3.  On 5 June 2010, he was apprehended by Military Police during a traffic stop.  As an odor of alcohol was detected and after failing a series of field sobriety tests, he was transported to the station and was charged with drunken driving.  

4.  On 23 June 2010, he was reprimanded by the Commanding General (CG), 1st Infantry Division, for driving under the influence of alcohol on 5 June 2010.  

5.  On 1 July 2010, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for physically controlling a passenger car with an alcohol concentration equal to or exceeding 0.08 grams of alcohol per 210 liter of breath on 5 June 2010, being drunk and disorderly at a church on 14 March 2010, and disobeying a lawful order not to consume alcohol on 5 June 2010.  His punishment consisted of a written reprimand and arrest in quarters for 10 days. 

6.  Later in July 2010, he was reprimanded by the CG, 1st Infantry Division, for being drunk and disorderly at a church, disobeying a lawful order not to consume alcohol, and driving under the influence of alcohol. 

7.  On 20 April 2011, the U.S. Army Human Resources Command (HRC), Retirement and Separation Branch, received a show cause recommendation on the applicant as a result of the Fiscal Year 2011 CPT, Army Maneuver, Fires, and Effects Promotion Board.  He was a two-time non-select for promotion to CPT as a result of the Fiscal Year 2012 promotion board.  In accordance with Title 10, U.S. Code, section 632 and guidance provided by the Army G-1, Director of Military Personnel Management Directorate, non-selection for promotion takes precedence over show cause. 

8.  Meanwhile, the applicant was also undergoing disability processing through IACH and/or the Warrior Transition Unit, Fort Riley, KS, for a history of mental issues that had been documented by Dr. P-le, PhD, of the Psychiatry Section, IACH.  His diagnosis was that of Depressive Disorder, NOS, and Generalized Anxiety Disorder.  

9.  The applicant's commander indicated the applicant's mental issues prevented him from performing in a satisfactory manner the duties and responsibilities required of his armor area of concentration.  Other Soldiers in the unit have to assume his responsibility which has a negative impact on the mission outcome.  He considers the applicant mentally unable to perform the duties required by a Soldier in his specialty. 

10.  The applicant was issued a physical profile on 6 July 2011 for Depressive Disorder, NOS; Generalized Anxiety Disorder; and Seizure Disorder.  His functional limitations included "No exposure to real or simulated combat, weapons or ammunition; no rotating shifts, no 24 hour duty, 8 hours of sleep, stationed within 50 meters of the MTF, no alcohol, attend scheduled appointments, Soldier is in the MEB process."

11.  On 10 August 2011, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, found the applicant was diagnosed with the below conditions.  The MEB recommended his referral to a PEB.  He agreed.

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Depressive Disorder

X
2.  Generalized Anxiety Disorder

X
3.  Acne
X

4.  Insomnia
X

5.  Upper Back Pain
X

6.  Erectile Dysfunction 
X

7.  Severe Acne
X

8.  Irritable Bowel Syndrome 
X

9.  Seizure Disorder
X

12.  The applicant concurred with the MEB twice:  

	a.  On 12 August 2011, he submitted a memorandum indicating his concurrence with the MEB findings.  He added that in reference to the physical NARSUM written by Dr. R---z, the upper back pain is a profiled condition that precluded him from doing 5 out of 10 Soldiers' tasks in block 5 of the physical profile.  He also could not pass the Army Physical Fitness Test.  He added that this incontrovertibly hindered him from performing in his AOC.  As to the mental portion of the NARSUM, written by Dr. P--e, Axis I, Alcohol Dependence, he affirms that he has stopped self-medicating his depression with alcohol as corroborated by the commander's statement, a letter from the Army Substance Abuse Program, page 3 of the NARSUM, and the VA mental Compensation and Pension examination.  He concluded that he had not had a drink since 1 September 2010. 

	b.  On the DA Form 3947, he indicated he reviewed the contents of the MEB and agreed it completely covered all his medical conditions. He authenticated this form with his signature on 15 August 2011. 

13.  On 31 August 2011, a PEB considered his case.  The PEB found the applicant's condition(s) prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit.  The PEB considered the applicant's medically-unacceptable conditions of Depressive Disorder, NOS and Generalized Anxiety Disorder and noted: 

	a.  His primary psychiatric diagnosis as Personality Disorder, NOS, and Alcohol Dependence, neither of which are compensable psychiatric disorders.  His symptoms stem from his personality disorder and current stressors of pending unemployment.  The condition is unfitting as an armor officer as it impairs his ability to reliably protect the Soldiers under his command and therefore is a risk to other Soldiers and places an undue burden on the military to retain him.

	b.  Soldier's condition would not be unfitting in the absence of his non-compensable alcohol abuse disorder or his personality disorder, and as such, is not separately compensable.  In accordance with paragraph 4-19 of AR 635-40 the condition is not rated.  

	c.  The PEB also considered his other conditions listed on the MEB but since they were determined to meet retention standards by the MTF, were not unfitting and therefore not ratable. 

	d.  The specific VA Schedule of Rating Disability codes to describe his condition and the disability percentage awarded would be determined by the VA. His disposition would be determined by the PEB upon receipt of the VA disability percentage.  The disposition was: pending VA rating. 

14.  Subsequent to this PEB, the PEBLO sent an email to Dr. D. P-le, Staff Psychiatrist, reference PEB clarification.  Dr. M---in stated the evidence that alcohol has negatively impacted the applicant's effectiveness and reliability is replete in the case file.  His depressive disorder, panic, alcohol dependence, and anxiety disorder are inextricably intertwined.  Given the evidence that his judgment, thinking, mood, occupational and social relationships have suffered from alcohol abuse and dependence, Dr. M---in asked if Dr. P-le had an opinion on whether his anxiety and depressive disorders would fail retention standards independent of alcohol.  

15.  On 26 August 2011, Dr. P. M---in, the Chief, Behavioral Health Department, IACH, sent an email response to the PEBLO indicating that Dr. D. P--e, Staff Psychiatrist, IACH, was out on that day.  Dr. M----n stated he was aware of the applicant's case and he had been his treating psychiatrist since he entered the Warrior Transition Battalion.  He entered the Warrior Transition Battalion following an alcohol-related incident whereby the CG - Rear recommended his entry.  After meeting with him, he recognized that he should have been removed as an officer, that what they primarily witnessed and diagnosed was a severely personality disordered, alcohol dependent, ineffective new officer.  Unfortunately, officers are too difficult to separate and changing commands did not share information.  This resulted in a lack of reprimands for poor performance and alcohol use.  He is drug-seeking, with a misuse of Ambien, Xanax, and Alcohol.  He is non-compliant with treatment (medications).  Various providers have recognized that his effective symptoms were due to his underlying Personality Disorder, NOS, Cluster B Sub-type.  His diagnosis is Personality Disorder, NOS, and Alcohol Dependence.  His Anxiety stems from Axis II and current stressors of pending unemployment.   His Anxiety is EPTS just as his Personality Disorder, NOS, is also EPTS.  He is not fit to lead or serve due to a combination of the above.  He is a liability. 


16.  On 13 September 2011, the DCCS approved the inclusion of the email from Dr. M---in, dated 26 August 2011 and submitted to the PEB in response to the PEB for clarification of medical conditions in the adjudication of the applicant's case.  

17.  On 16 August 2012, by memorandum, HRC notified the applicant he was considered by the Fiscal Year 2012 CPT Army Competitive Category Promotion Selection Board for promotion to CPT but he was not selected.  By law, Title 10, U.S. Code, section 631, he must separate no later than 1 March 2013 which is within 6 months of the promotion approval date of August 2012.  

18.  On 11 September 2012, the CG, Fort Riley, notified the applicant that the elimination action directed against him on 26 June 2012 has been rescinded and that since he was a two-time non-select for promotion to CPT, he would be separated from the Army no later than 1 March 2013. 

19.  On 14 September 2012, the applicant acknowledged receipt of the memorandum from the General Officer Show Cause Authority closing the pending officer elimination proceedings that were previously initiated by HRC.

20.  On 22 October 2012, the Chief of Staff, Headquarters, Western Regional Medical Command, Joint Base Lewis-McChord, WA appointed an investigating officer (IO) pursuant to AR 15-6 to conduct an informal investigation into allegations by the applicant's counsel on 30 August 2012 of irregularities at IACH in the processing of the MEB and PEB relating to the applicant.  The key questions to be answered were:

* Whether applicable regulations and procedures were followed in the processing of the applicant's MEB and PEB
* The extent to which the applicant received electric shock treatment at IACH, the timing of the treatment, if any; whether a reevaluation is required, and whether the treatment received has been documented in the NARSUM

21.  He was honorably discharged from active duty on 1 March 2013 in accordance with paragraph 5-9 of Army Regulation 600-8-24 (Officer Transfers and Discharges) by reason of non-selection for promotion.  He completed 4 years, 7 months, and 1 day of active service. 

22.  Meanwhile, and prior to the applicant's discharge, on 21 November 2012, the IO submitted his findings and recommendations regarding the informal investigation into allegations of irregularities at IACH in the processing of the MEB/PEB relating to the applicant.  The IO found: 
	a.  The applicant first sought treatment through Behavioral Health at IACH in 2006 for erectile dysfunction, diagnosed as Anxiety Disorder.  He dropped out of care after a few sessions, and returned again in 2009 for depression (diagnosed as Adjustment Disorder) and erectile dysfunction.  In March 2010, LTC E-----th  K---e referred the applicant to the PDES for Anxiety Disorder.  He submitted documentation from his chain of command, who stated that his anxiety was not interfering with his ability to function in the military.  As a result, MAJ M---in withdrew the referral to an MEB.

	b.  The applicant continued to have difficulties in his unit, for various reasons, including alcohol-related incidents.  On 5 August 2011, Dr. M---in directed Dr.    P--- to initiate another MEB for Depressive Disorder, NOS and Generalized Anxiety Disorder.  The case was then referred to Dr. L---nd R--tz, MEB Physician, who initiated a DA Form 3349 referring the applicant to the PDES for "Depressive Disorder, NOS not meeting retention standards per AR 40-501, paragraph 3-32 and 3-33," and "Generalized Anxiety Disorder not meeting retention standards per AR 40-501, paragraph 3-32 and 3-33."

	c.  The applicant's case was considered by an MEB comprised of two physicians, including Dr. M---in, a psychiatrist, and Dr. R---z, the MEB physician. The findings of the MEB were entered on the DA Form 3947 and the form was signed by Dr. R---z and by Dr. D----ah C----ey, who signed for Dr. M---in.  The MEB found the applicant had "Depressive Disorder, NOS not meeting retention standards per AR 40-501, paragraph 3-32 and 3-33," and "Generalized Anxiety Disorder not meeting retention standards per AR 40-501, paragraphs 3-32 and  3-33," and recommended that the Approving Authority refer the patient to a PEB. These recommendations were approved by COL C---g W--b, the Approving Authority, on 10 August 2011. 

	d.  On 15 August 2011, the applicant took action on the MEB by checking the box in block 24 indicating agreement with the board's findings and recommendations.  On 18 August 2011, the PEBLO signed a DA Form 5889 forwarding the results of the approved MEB and the other required documentation to the PEB.  COL O'S-----an appointed a PEB consisting of 3 members to consider the applicant's case.  In the course of its informal deliberations, the PEB, on 25 August 2011, through email from MAJ H---ck, requested clarification from his MEB psychologist, Dr. P-le, with a copy to Dr.      M---in, regarding "whether his anxiety and depressive disorders would fail retention standards independent of alcohol."  In Dr. P-le's absence, his treating psychiatrist, Dr. M---in, responded to the email, stating, "his affective symptoms are due to his underlying PD, NOS cluster B subtype.  His running diagnoses have been PD NOS and EtOH (short-hand used for drinking alcohol) Dependence.  His Anxiety stems from Axis II and current stressors of unemployment.  His Anxiety is EPTS, just as his PD NOS is EPTS."  Upon his return, Dr. P-le saw that the email was answered and took no further action at that time.

	e.  On 31 August 2011, the PEB returned the following preliminary finding, as noted in the preliminary IDES DA Form 199 Disability Description: Depressive Disorder (NOS) and Generalized Anxiety Disorder.  His primary psychiatric diagnoses are personality disorder not otherwise specified and Alcohol Dependence, neither of which are compensable psychiatric disorders.  Soldier's symptoms stem from his personality disorder and current stressors of pending unemployment.  Condition is unfitting for Soldier in MOS 19A...Soldier's condition would not be unfitting in the absence of his non-compensable alcohol abuse disorder or his personality disorder, and as such, is not separately compensable.

	f.  On 26 September 2011, the PEB returned the case to the MEB, seeking additional clarification.  On 29 September 2011, the MEB psychologist, Dr. P-le, wrote a memorandum to the PEB, countersigned by his supervisory psychiatrist, Dr. B---------ge, stating, "his impairment for Military Duty and Occupational Functioning is due primarily to his Axis I diagnosis of Depressive Disorder NOS and Generalized Anxiety Disorder."  Dr P-le later admitted that he was a "rookie" regarding writing MEBs, and that the original report he wrote was "an incomplete representation of the applicant's condition."  Dr. B---------ge countersigned the memorandum written by Dr. P-le, relying on his judgment which she trusted. 

	g.  Later, on 25 October 2011, Dr. B---------ge and Dr. P-le joined with Dr.    M---in and Dr. N-----en in writing a memorandum to the PEB that was more inclusive of all of the applicant's pathologies.  It stated, ''It is the finding of this board that the service member's primary dysfunction resulting in occupational limitations stems from an underlying mixed personality disorder with Cluster B traits, alcohol dependence vs. abuse."  That memorandum was written in collaboration, and represented each of those provider's independent opinions.

	h.  On 23 November 2011, COL C---g W--b, DCCS, wrote a memorandum to the PEB requesting administrative termination of the PEB due to "non-ratable conditions."  On 2 December 2011, the president of the PEB terminated the MEB process, stating, "further evaluation and review has led to [the] determination that Soldier no longer fails retention standards for compensable condition and other conditions are not compensable in accordance with DODI 1332.38 (PEB), enclosure 5 (Conditions not constituting Physical Disability)."  On 30 August 2012, the applicant's counsel sent a memorandum electronically to TSG and Deputy TSG alleging that the policy of having the VA be the sole diagnostic source for MEBs was being violated; the commander is ignoring legitimate needs of the Soldier; MAJ M---in improperly intercepted, and responded to, an email to  Dr. P-le (In that email, MAJ M--in introduces a new diagnosis, personality disorder, that the applicant never had an opportunity to rebut, thus violating his right to due process); MAJ M---in's comments were vitriolic, contradictory and assaultive; the 31 August decision of the PEB predates the DCCS approval of the above email indicating an attempt to cover up an ill-advised act; the applicant has subsequently received electroconvulsive therapy (ECT) which was not included in his NARSUM.  The applicant received approximately 18 ECT treatments at Stormont-Vail Healthcare in Topeka, KS, from 13 January 2012 through 4 April 2012.  He never received ECT at IACH, which does not conduct ECT.  His ECT was not endorsed by IACH providers.  Dr. R---n H------es, his treating psychiatrist at IACH, communicated to his doctor at Stormont-Vail (the doctor's signature is not legible and the doctor is not otherwise clearly identified in the Stormont-Vail record) that the applicant's primary diagnosis was Personality Disorder, which is not an indication for ECT.  In his sworn statement, Dr. H-----es clearly indicates his belief that ECT was not an appropriate treatment.  Dr. H-----es reported no long term sequelae from his ECT.  He also reported no ongoing disability from the ECT.  He reported no new issues that would need to be addressed in an MEB.  Records from Stormont-Vail indicate that the applicant experienced "no significant memory problems" and "short term memory problems manageable."  

	i.  As to the first question from the Amendment to the Appointment Order: "Whether applicable regulations and procedures were followed in processing the applicant's MEB and/or PEB," the IO concluded the applicable regulations and procedures were appropriately followed in processing the applicant's initial MEB. The initial MEB was appropriately withdrawn at his request, because, based on letters of support from his command, his condition at that time did not appear to interfere with duty performance causing it to fall outside of the criteria for submission to an MEB contained in AR 40-501, paragraph 3.33.  The applicable regulations and procedures were also appropriately followed in the processing of his second MEB.  First, the MEB involved a mental health condition and the MEB was properly constituted, being comprised of two physicians, one of whom was a psychiatrist as required by AR 40-400 (Patient Administration), paragraph 7-3.  Second, the MEB considered the available medical evidence and rendered findings on a DA Form 3947 as required by AR 40-400, paragraphs 7-8 and 7-9. Third, the Approving Authority reviewed the findings of the MEB and properly recorded his determination on the DA Form 3947 as required by AR 40-400, paragraph 7-13.  Fourth, the findings of the MEB were properly presented to the applicant for action in accordance with AR 40-400, paragraph 7-18.  After he indicated agreement, the MEB decision was then properly forwarded to the PEB in accordance with AR 40-400, paragraph 7-19. 

	j.  The applicable regulations and procedures were also followed in the processing of the applicant's PEB.  Upon receipt the MEB, a properly-constituted PEB was convened that was comprised of a three-member panel that included a physician in accordance with AR 635-40, paragraph 4-17b.  The PEB first considered the case on an informal basis in accordance with AR 635-40, paragraph 4-20a.  The PEB properly requested and considered additional documents in accordance with AR 635-40, paragraph 4-19c and 4-20a.  When the PEB wrote an email requesting additional information to Dr. P-le, with a copy furnished to Dr. M---in.  Dr. M---in, as his treating psychiatrist and the provider who knew him the best, chose, appropriately, to respond to the PEB with full disclosure of his alcoholism and personality disorder.  The PEB appropriately concluded that the anxiety and depression conditions failed retention standards only in the context of his alcohol disorder and personality disorder.  AR 635-40, 4-19(f)(4) provides that a Soldier is not eligible for disability benefits when unfitness depends on the combined effect of two or more disabilities, and one of them does not meet the requirements for entitlement to benefits.  DODl 1332.38 lists the conditions of alcohol disorder and personality disorder as conditions not constituting a disability.  The applicant's diagnosed conditions of anxiety and depression would not, standing alone, cause him to fail retention standards.  The findings of the PEB were recorded on the DA Form 199 in accordance with AR 635-40, paragraph 4-19a.  Rather than continue to process the PEB by providing the findings of the PEB to the applicant for election as provided for in AR 635-40, paragraph 4-20e, the President of the Board terminated processing of the PEB at that point at the request of COL W--b, DCCS.  While the regulation does not expressly provide for this action, the applicant suffered no adverse effect because the result of the action was to terminate the process and return him to full duty.

	k.  As to counsel's allegations regarding specific violations of applicable regulations, the IO concluded the allegation that the PEB violated the army policy of having the VA be the sole diagnostic source for MEBs, there was no such policy when the opinion was rendered by the board.   The MEB Phase Implementation Guidance to Operation Order (OPORD) 12-31 (Medical Command (MEDCOM) Implementation of the IDES) was not published until July 2012.  The MEB had already been terminated prior to that guidance.  

	l.  As to the allegation that the commander is ignoring the legitimate needs of the Soldier, the allegation is unfounded.  Very clearly, from the record, the Army has carefully addressed the applicant's legitimate needs.

	m.  As to the allegation that MAJ M--in improperly intercepted, and responded to, an email to Dr. P-le, and that in that email MAJ M--in introduces a new diagnosis, personality disorder, that the applicant never had an opportunity to rebut, thus violating his right to due process, the allegation is unfounded.  The PEB provided MAJ M---in a copy of the email to Dr. P-le and he properly responded in Dr. P-le's absence.  As discussed above, the PEB properly sought and considered this additional information in accordance with its regulation.  The personality disorder diagnosis was not new.  It was well documented in the record, to include a DA Form 3349 dated 22 October 2010 and documentation of discussion of the condition with the applicant on 10 November 2010.  The regulation does not provide the Soldier with a due process right to respond to this information at this part of the informal proceeding because that right is afforded subsequently when the Soldier may elect to proceed to the formal process.  The applicant did not have that opportunity only because the proceedings were terminated and he was returned to his full duty status as if the PEB had not been initiated.  As he had no loss, there was no due process violation.

	n.  As to the allegation that MAJ M---n's comments were vitriolic, contradictory and assaultive, the allegation is unfounded.  While this is a matter of opinion, he (the IO) disagreed.  His choice of language was not vitriolic, and not contradictory.  Nothing in the records can be construed as assaultive. 

	o.  As to the allegation that the 31 August decision of the PEB predates the DCCS approval of the above email, indicating an attempt to cover up an ill-advised act, the IO did not find merit to this allegation.  While the PEB decision predates the DCCS approval, this is not indicative of an attempt to cover up anything.  It is within the authority of the PEB to act on information legitimately obtained, even though not yet approved by the DCCS.

	p.  As to the allegation that the applicant has subsequently received ECT which was not included in his narrative NARSUM, this is a simple matter of chronology.  While the applicant received ECT, which is not included in his NARSUM, the ECT occurred after the MEB/PEB had already been terminated.  As a result, it could not have been included.  Whether or not the ECT needs to be addressed in an MEB NARSUM summary is a separate question addressed below.

	q.  As to the second question from the Amendment to the Appointment Order: "The extent to which the applicant received electric shock treatment at IACH, the timing of that treatment, if any, whether a reevaluation of the applicant is required, and whether the treatment received has been documented in the NARSUM," the IO concluded a preponderance of the evidence indicates that no reevaluation of the applicant was necessary.  The ECT treatment was provided after his MEB/PEB had been terminated, thus, it was not included in his NARSUM.  Dr. M--in, Dr. H------es, and Dr. C-----y all have provided testimony that his current primary Behavioral Health pathology is his Personality Disorder, and that his depressive and anxiety symptoms would not be impairing in the absence of his personality disorder.  The applicant's primary diagnosis was Personality Disorder, which is not an indication for ECT.  Further, there is no evidence to support a diagnosis of Cognitive Disorder as a result of his ECT.  Mild short term memory problems are common and are expected from ECT.  There is no indication of long-term issues from the Armed Forces Health Longitudinal Technology Application (AHLTA), his treating providers, or Stormont-Vail records.

23.  Based on these findings and conclusions, the IO made certain recommendations.  However, these are not available for review with this case as they were not provided by counsel. 

24.  An advisory opinion was received from the U.S. Army Physical Disability Agency (USAPDA) on 7 April 2014.  An official stated: 

	a.  The applicant requests that his military records be corrected by having a PEB find him unfit for his medical conditions as reflected in the MEB, dated 10 August 2011.  On 23 November 2011, the MEB of the applicant was officially withdrawn and administratively terminated due to the official medical opinion that the applicant's conditions were considered to be "conditions not constitute a physical disability" in accordance with DODI 1332.38.  Accordingly, the applicant was not eligible for MEB/PEB processing.  Once the MEB was withdrawn, the PEB no longer had jurisdiction to adjudicate the applicant's case.

	b.  On 7 January 2013, the MTF commander approved an AR 15-6 investigation regarding the termination of the applicant's MEB.  The investigation found that the termination was proper and supported by a preponderance of the medical evidence.

	c.  The applicant's petition for correction of his military records essentially requests that the MEB be reinstated and claims that the AR 15-6 findings are not valid and should be overturned or ignored.  Such actions are not within the purview or authority of this agency and the USAPDA cannot review or provide an opinion regarding these actions and findings by the Army military medical authorities.  Any such review of the MEB findings needs to be addressed to them.

25.  The applicant was provided with a copy of this advisory opinion.  His counsel responded on 18 April 2014.  He stated that the advisory opinion has no value.  He repeated his contention that what occurred at the MTF in the applicant's case was an abomination.  The applicant was clearly unfit for duty while on active duty.  The investigation that declared him fit was a pathetic whitewash of the MTF's personnel abuse of their professional status. 

26.  AR 635-40 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 or her office, grade, rank, or rating.

	a.  The PDES assessment process involves two distinct evaluations, the 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 or 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 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 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 individuals who retire based on 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 a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who 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 duties 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 a 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.

27.  AR 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.  Personality Disorder and Alcohol Dependence are not unfitting conditions. 

28.  Title 10, U.S. Code, section 14504 states a 1LT on the Reserve Active Service List (RASL) of the Army, Air Force, or Marine Corps or a lieutenant (junior grade) on the RASL of the Navy who has failed of selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall be separated in accordance with section 14513 of this title not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his military records be corrected by placing him in the IDES for the purpose of determining his unfitting condition and percentage of disability.  

2.  The applicant first sought treatment through Behavioral Health at IACH in 2006 for erectile dysfunction, diagnosed as Anxiety Disorder.  He dropped out of care after a few sessions, and returned again in 2009 for depression (diagnosed as Adjustment Disorder) and erectile dysfunction.  In March 2010, he was referred to the PDES for Anxiety Disorder.  He submitted documentation from his chain of command, who stated that his anxiety was not interfering with ability to function in the military.  As a result, referral to the MEB was withdrawn.

3.  The applicant continued to have difficulties within the unit, mainly alcohol related incidents.  In August 2011, the Chief, Behavioral Health Department, IACH directed a staff psychiatrist to initiate another MEB for Depressive Disorder, NOS and Generalized Anxiety Disorder.  The case was then referred to the MEB physician, who initiated a physical profile referring the applicant to the PDES for "Depressive Disorder, NOS," and "Generalized Anxiety Disorder," not meeting retention standards per AR 40-501, chapter 3.

4.  When the PEB considered his case, it asked clarification from his MEB psychologist/staff psychiatrist whether his anxiety and depressive disorders would fail retention standards independent of alcohol.  The response came back from his treating psychiatrist who responded stating, "his affective symptoms are due to his underlying Personality Disorder, NOS, Cluster B subtype.  His running diagnoses have been Personality Disorder NOS and Alcohol Dependence.   His Anxiety stems from Axis II and current stressors of unemployment. 

5.  In November 2011, the DCCS wrote a memorandum to the PEB requesting administrative termination of the PEB due to "non­ ratable conditions."  As a result, the president of the PEB terminated the MEB process, stating, "further evaluation and review has led to [the] determination that Soldier no longer fails retention standards for compensable condition and other conditions are not compensable in accordance with DODI 1332.38 (Conditions not constituting Physical Disability)."  

6.  The applicant's MEB was officially withdrawn and administratively terminated due to the official medical opinion that the applicant's conditions were considered to be "conditions not constitute a physical disability."  His condition would not be unfitting in the absence of his non-compensable alcohol abuse disorder or his personality disorder, and as such, is not separately compensable.  He was ultimately discharged from the Army for being twice non-selected for promotion

7.  The applicant does not qualify and is not eligible for entry into the IDES for three reasons: 

	a.  First, the MEB was appropriately withdrawn because, based on letters of support from his command and the evaluation by his doctors, his condition at that time did not appear to interfere with his duty performance causing it to fall outside of the criteria for submission to a MEB contained in AR 40-501, chapter 3.

	b.  Second, even if the applicant had an unfitting condition at the time, the MEB Phase Implementation Guidance to OPORD 12-31 (MEDCOM Implementation of the IDES) was not published until July 2012.  The MEB had already been terminated prior to that guidance.  He would not have qualified for the IDES.

	c.  Third, all of the applicant's issues (and those of his counsel) were thoroughly investigated by an official AR 15-6 and the IO provided a comprehensive review of each and every point of contention.  Counsel attempts to reopen the investigation knowing that this Board is not an investigative agency and that the preponderance of the evidence clearly established the applicant did not have an unfitting condition. 

	d.  Once the MEB was withdrawn, the PEB no longer had jurisdiction to adjudicate the applicant's case.  The AR 15-6 investigation regarding the termination of the applicant's MEB found that the termination was proper and supported by a preponderance of the medical evidence.
8.  In view of the foregoing evidence, the applicant is not entitled to 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)                                         AR20130014433



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ABCMR Record of Proceedings (cont)                                         AR20130014433



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