BOARD DATE:	  4 September 2014

		DOCKET NUMBER:  AR20130017846 


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:

	a.  reconsideration of her previous request for correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her rank and pay grade as sergeant first class (SFC)/E-7; 

	b.  correction of her record to show she was discharged with severance pay; and 

	c.  in effect, correction of her record to show her diagnosis of adjustment disorder was found not unfitting.  

2.  She states, in effect:

	a.  Her rank was taken illegally; she should have been medically discharged with a 20 percent (%) disability rating, severance pay, in the rank of SFC, and with 16 years of service.  She wants back pay for the rank of SFC because there is no record of who authorized her reduction in rank.  

	b.  An inaccurate diagnosis was added to her Physical Evaluation Board (PEB), which has caused her and her family extreme hardship.  Her final PEB results should show a rating of 20% from the Department of Defense (DOD) and 50% from the Department of Veterans Affairs (VA).  A noncommissioned officer at the U.S. Army Physical Disability Agency (USAPDA) changed her final DA Form 199 (PEB Proceedings) after she separated from the Army and did not send it through a USAPDA physician.  

	c.  She had an appointment on 15 November 2013 with the VA to do another mental health diagnosis.  She has been diagnosed with depression, panic, and anxiety for years.  The diagnosis of chronic adjustment disorder and borderline personality disorder can have a severe impact on her finding employment in the future.  

3.  She provides:

* DD Form 214 
* orders
* Medical Evaluation Board (MEB) Narrative Summary (NARSUM) 
* Physical Disability Information Report
* DA Form 199-2 (USAPDA Revised PEB Proceedings)
* USAPDA memorandum
* letter from the Defense Finance and Accounting Service (DFAS), Retired and Annuity Pay
* letter from her mortgage lender

CONSIDERATION OF EVIDENCE:

1.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within 1 year of the ABCMR's original decision and has not previously been reconsidered.

2.  The applicant's request for reconsideration of her previous request to correct her rank and pay grade was not received within 1 year of the ABCMR's earlier decision in ABCMR Docket Number AR20110024721, dated 25 September 2012.  As a result, this issue will not be discussed further in these proceedings.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) on 7 August 1991.  She was awarded military occupational specialty 92Y (Unit Supply Specialist).  On 9 May 1999, she was assigned to the USAR Control Group Active Guard Reserve.  



4.  A DA Form 3947, dated 16 January 2013, shows an MEB diagnosed her with four conditions.  Diagnosis 1 (cervical spondylosis and right shoulder tendinopathy in combination) was found to be disqualifying.  Diagnoses 2 through 4 (adjustment disorder with mixed disturbance of emotions and conduct, thoracic strain, and borderline personality disorder) were found to be non-disqualifying.  The MEB recommended that she be referred to a PEB and the findings and recommendation were approved.  She signed the form indicating she agreed with the MEB's findings and recommendation.  

5.  On 16 April 2013, the VA issued a Disability Evaluation System (DES) Proposed Rating.  The VA evaluated the applicant and proposed entitlement to service connection for the following conditions:

* 10% – right shoulder tendinopathy referred as cervical spondylosis and right shoulder tendinopathy in combination for DES purposes
* 10% – cervical arthritis referred as cervical spondylosis and right shoulder tendinopathy in combination for DES purposes
* 30% – adjustment disorder with mixed emotions and conduct (also claimed as anxiety with panic attacks)
* 10% – thoracic strain (claimed as back condition)

6.  The record shows the applicant was notified of the VA's determination.

7.  A Psychiatric NARSUM Addendum, dated 10 July 2013, shows she had no psychiatric diagnoses not meeting medical retention standards.  She was diagnosed with chronic adjustment disorder with mixed disturbance of emotions and conduct.  The document shows the psychologist who prepared the NARSUM found:

	a.  She had been referred for command-directed mental health evaluations in January and September 2011.  At both evaluations, she was found to have personality characteristics that contributed to her problems.  At the September 2011 evaluation, she was diagnosed with borderline personality disorder.  She was given a rating of "3" for physical profile serial factor "S" (psychiatric) because she was supposed to be taking Risperdal (used to treat certain mental or mood disorders) and would not be able to deploy on that medicine.  The examining psychiatrist stated that if she were not taking the medication she could have an "S1" profile.  Her medical records showed she had last filled a prescription for Ambien on 2 January 2013 and had no other active prescriptions.  On 8 July 2013, she confirmed she was not taking any psychotropic medication.  

	b.  She had a pattern of going to the Emergency Department or to the Department of Behavioral Health to complain about her chain of command and avoid disciplinary action.  

	c.  A VA examination concluded that she did not have panic disorder and that her correct diagnosis was chronic adjustment disorder with mixed disturbance of emotions and conduct.  Her chronic adjustment disorder had never resulted in persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization or limitations of duty or duty in a protected environment.  The condition met retention standards.  

8.  The Psychiatric NARSUM Addendum shows that, on 10 July 2013, the applicant acknowledged that she had been informed of the approved MEB findings and recommendation regarding chronic adjustment disorder and that she agreed with the findings and recommendation.  

9.  On 10 July 2013, the applicant also acknowledged a change to the first page of the DA Form 3947.  Diagnosis 2 (adjustment disorder) was amended by adding "chronic."   

10.  A DA Form 199 (Informal PEB Proceedings) shows a PEB convened on 16 July 2013 to consider the applicant's case.  

	a.  The PEB found the following conditions to be unfitting:

* adjustment disorder with mixed disturbance of emotions and conduct (MEB diagnosis 2) – 30%
* right shoulder tendinopathy (MEB diagnosis 1) – 10%
* cervical arthritis (MEB diagnosis 1) – 10%

	b.  In the entry for MEB diagnosis 2, the PEB stated, in part:

This condition began in 2003, when the Soldier had psychiatric hospitalization not related to combat stressors….Despite treatment this impairment persists.  The Commander states that the Soldier is unable to focus on tasks due to psychiatric medication.  This condition is unfitting ([in accordance with Department of Defense Instruction] 1332.38, E3.P3.2.2.1) because it represents a decided medical risk to the health of the member and to the welfare of other members.

	c.  The PEB determined MEB diagnoses 3 (thoracic strain) and 4 (borderline personality disorder) were not unfitting.  

	d.  The PEB recommended a combined disability rating of 40% and that the applicant be retired for permanent disability.

	e.  On 17 July 2013, she concurred with the PEB's findings and recommendation, waived a formal hearing of her case, and stated she did not request reconsideration of her VA ratings.

	f.  On 29 July 2013, the PEB findings and recommendation were approved for the Secretary of the Army.

11.  A memorandum, subject:  Request for Reconsideration of Informal PEB for [Applicant] and Appearance at a Formal Hearing, dated 30 July 2013, shows the applicant requested that her DA Form 199 be amended to remove reference to her use of psychiatric medication on the basis that she had since discontinued the medication, which was confirmed by the Psychiatric NARSUM Addendum.  If her request were to be denied, she requested appearance at a formal hearing.

12.  A DA Form 199-2, dated 19 August 2013, shows the USAPDA administratively corrected the PEB proceedings approved on 29 July 2013 by removing the sentence "The Commander states that the Soldier is unable to focus on tasks due to psychiatric medication" from the description of her adjustment disorder with mixed disturbance of emotions and conduct.  The original PEB recommendation was not changed; however, in Section V (Medical Conditions Determined not to be Unfitting) of the DA Form 199-2, the phrase "adjustment disorder with mixed disturbance of emotions and conduct (MEB Dx 2)" was added.  

13.  On 19 August 2013, the Chief, Operations Division, USAPDA, notified the applicant of the administrative correction of her PEB proceedings and informed her that the administrative correction did not change her disposition or rating.  

14.  Orders 226-0286, dated 14 August 2013, issued by Headquarters, U.S. Army Garrison, Fort Bragg, NC, show the applicant was retired effective 28 August 2013 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of permanent disability with a 40% disability rating.  Her DD Form 214 shows she was retired as ordered.

15.  A DA Form 199-2, dated 5 September 2013, shows the USAPDA again administratively corrected the PEB proceedings by removing the phrase "adjustment disorder with mixed disturbance of emotions and conduct (MEB 
Dx 2)" from Section V.  The original PEB recommendation was not changed.  

16.  Army Regulation 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.  The PDES assessment process involves two distinct evaluations, the MEB and the PEB.  

	a.  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.  

	b.  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 (applicable to those with disability ratings less than 30%) or permanently retired (applicable to those with disability ratings of 30% or greater), 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.

17.  Directive-type Memorandum (DTM) 11-015 explains the Integrated Disability Evaluation System (IDES).  It states: 

	a.  The IDES is the joint DOD-VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and the VA determine appropriate benefits for Service members who are separated or retired for a service-connected disability.  The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments.  Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment.

	b.  Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 and the Under Secretary of Defense for Personnel and Readiness Memoranda.  All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances.  Service members whose cases were initiated under the legacy DES process will not enter the IDES.

	c.  IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension (C&P) standards.  Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. 

	d.  Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition.  For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process.  If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR.

	e.  If, after separation from service and attaining veteran status, the former Service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction.

18.  Army Directive 2013-12 (Implementation of DOD Policy Change Concerning Chronic Adjustment Disorder), dated 17 June 2013, established the Army standard for medical fitness for chronic adjustment order in accordance with changes to Department of Defense Instruction 1332.38 (Physical Disability Evaluation).  A diagnosis of chronic adjustment disorder is cause for referral to an MEB when a Soldier exhibits persistent or recurring symptoms directly caused by exposure to an enduring stressor.  The symptoms must last longer than 6 months.   




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she was evaluated as 20% disabled.  It appears she is basing this contention on the DA Form 199-2 dated 19 August 2013, which listed adjustment disorder as both an unfitting and not unfitting condition.  However, the record clearly shows that an administrative error occurred in listing adjustment disorder as a not unfitting condition.  The error was corrected by issuance of the DA Form 199-2, dated 5 September 2013.  Other than the error that was corrected, there is no evidence indicating the administrative correction of her PEB proceedings was improper or that she was deprived of any rights.  

2.  The PEB properly found her chronic adjustment disorder to be unfitting based on the criteria published in Army Directive 2013-12 and adopted the VA rating for this unfitting condition as required under the IDES.  The record shows she did not challenge the basic PEB findings and recommendations, merely one sentence that referenced her use of psychiatric medication.  Removing that sentence was not a substantive change that warranted further review of her case by a physician.

3.  She has not provided any documentation indicating her diagnosis of chronic adjustment disorder was an error, and she has not provided any documentation indicating the VA has made any changes to ratings for her unfitting conditions that would serve as a basis for amending the PEB findings and recommendation. In the absence of a basis for amending the PEB findings and recommendation, there is no basis for correcting her record to show she was discharged with severance pay.  

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)                                         AR20130017846



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ABCMR Record of Proceedings (cont)                                         AR20130017846



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