IN THE CASE OF:	  

		BOARD DATE:	 17 December 2013 

		DOCKET NUMBER:  AR20130020010 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his earlier request for a review of the military disability evaluation of his mental health condition.

2.  The applicant states, in effect, according to the certified letter he received from the Army Review Boards Agency, that essentially stated the Acting Assistant Secretary of the Army (Manpower and Reserve Affairs) recently issued a memorandum restricting the use of forensic psychiatric evaluations conducted at Madigan Army Medical Center from 2007 to 2012 when determining disability or fitness for duty.  

3.  The applicant provides the previously-submitted documents. 

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 AR20120019281, on 24 October 2013.  

2.  The applicant received the certified letter from the Army Review Boards Agency and in effect concurred to a review of his previous case.  

3.  The applicant's records show he enlisted in the Regular Army (RA) on 16 September 1998 and he held military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic).  He reenlisted in the RA on 13 June 2001 and served in Iraq from 31 October 2003 to 31 October 2004.

4.  He complained of leg pain caused by bilateral shin splints since 1999.  His pain limited his ability to perform the duties required of his grade and MOS.  

5.  On 27 March 2007, a medical evaluation board (MEB) convened and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with the below conditions.  The MEB recommended the applicant's referral to a physical evaluation board (PEB).  He was counseled and agreed with the MEB's findings and recommendation.  

Diagnosis
Met Retention Standards
Did Not Meet Retention Standards
1.  Bilateral shin pain (shin splints)

X
2.  Mild obstructive sleep apnea 
X

3.  Nightmares 
X

4.  PTSD, chronic 
X

5.  Bilateral maxillary sinusitis secondary to sinus exposure from dental extractions 
X

6.  On 21 May 2007, an informal PEB convened and found the applicant's condition(s) prevented him from performing the duties required of his grade and military specialty and determined that the applicant was physically unfit due to chronic leg pain caused by bilateral shin splints since 1999.  The PEB rated the applicant's medically-unacceptable condition under the VA Schedule for Rating Disabilities (VASRD) as follows:  

VASRD Code
Condition
Percentage
5003/5099
Chronic anterior leg pain
10%
7.  The PEB also considered the applicant's other conditions but since those conditions did not fail retention standards and/or were not unfitting, they were not ratable.  The PEB recommended a 10% combined disability rating and separation with entitlement to severance pay if otherwise qualified.  Subsequent to counseling, the applicant appears to have concurred with the PEB's finding and recommendation and waived his right to a formal hearing.

8.  The applicant was discharged on 21 August 2007 in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24B(3) with entitlement to severance pay.  

9.  On 28 September 2012, Dr. C.D. C----, PhD, a clinical psychologist, conducted a cell reevaluation of the applicant's behavioral health to assess his current psychiatric fitness for duty following a previous evaluation in which a forensic behavioral health evaluation.  Dr. C.D. C---- proposed the deletion of "PTSD, Meets retention standards" and the addition of "PTSD, Fails retention standards."  Dr. C.D. C---- provided an MEB Addendum that shows the applicant's behavioral health diagnosis as follows:

* Axis I: PTSD, chronic 
* Axis I: Diagnosis deferred
* Axis III: See medical records 
* Axis IV: Medically retired from the Army
* Axis V: Global Assessment of Functioning (GAF) score of 58 (current) and 68 (at time of separation in 2007)

10.  A memorandum, subject:  Madigan Fusion Cell Cases, dated 16 April 2013, was initiated by the Deputy Surgeon General, Office of The Surgeon General, in support of the Soldiers reevaluated by the Madigan Fusion Cell:

	a.  From 2007 to 2012, Soldiers undergoing an MEB at Joint Base Lewis-McChord underwent a forensic psychiatric evaluation instead of the standard clinical psychiatric evaluation.  However, clinical, not forensic evaluations are the only recognized type of assessments for routine Integrated Disability Evaluation System cases.  The use of forensic evaluations was not consistent with the processes in place at all other military treatment facilities.  On 7 February 2012, The Surgeon General suspended the use of forensic evaluations during the conduct of MEBs.

	b.  In early 2012, The Surgeon General directed the establishment of a Fusion Cell under the mission command of Western Regional Medical Command to conduct behavioral health clinical reevaluations and begin a redress process for any Soldiers and former service members who may have been disadvantaged by the Madigan Army Medical Center MEB Forensic Psychiatry Service's practices.

11.  On 7 November 2013, on behalf of the Secretary of the Army, the Acting Assistant Secretary of the Army (Manpower and Reserve Affairs) issued a memorandum restricting the use of forensic psychiatric evaluations conducted at Madigan Army Medical Center from 2007 to 2012 when determining disability or fitness for duty. 

12.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

   a.  Paragraph 3–9 provides guidance for the temporary disability retired list (TDRL).  Specifically, it states the TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.  Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30% or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208 (10 USC 1208).  In addition, the condition must be determined to be temporary or unstable.

   b.  Paragraph 4-17 provides guidance for  PEBs.  Specifically, it states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  Its findings and recommendation may be revised.

13.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  The VASRD, section 4.129, provides information regarding mental disorders due to traumatic stress.  Specifically, it states that when a mental disorder that develops in service as a result of a highly-stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the 6-month period following the veteran’s discharge to determine whether a change in evaluation is warranted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was considered by an MEB in March 2007 that referred him to a PEB.  His MEB listed one condition that did not meet retention standards (shin splints) and several other conditions that met retention standards.  PTSD was listed as condition that met retention standards. 
2.  The PEB found the condition that failed retention standards prevented him from performing the duties required of his grade and military specialty and determined he was physically unfit.  The PEB rated his disabilities at a combined rating of 10%.  The PEB also considered his other conditions but since those conditions did not fail retention standards and/or were not unfitting, they were not ratable.  The PEB recommended separation with entitlement to severance pay.   He was discharged on 21 August 2007. 

3.  Subsequent to his discharge, he underwent a fusion cell reevaluation.  The clinical psychologists proposed the deletion of "PTSD, Meets retention standards" and the addition of "PTSD, Fails retention standards." 

4.  The subsequent reevaluation is accepted in lieu of the initial evaluation.  The applicant is entitled to correction of his records to show PTSD, chronic, as a disabling condition that did not meet retention standards, effective 21 August 2007, the date of his original separation.  

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20120019281, dated 24 October 2013.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deletion from his MEB/PEB proceedings of "PTSD, Meets retention standards" and addition of "PTSD fails retention standards"; 

	b.  showing, in addition to the existing disabling/ratable condition, a determination of unfitness for PTSD with placement on the TDRL at the rate of 50 percent for a minimum period of 6 months, and making a final disability determination as appropriate;

	c.  providing orders showing the individual was placed on the TDRL effective the date of the original medical separation for disability; and

	d.  adjusting the individual's pay.




      ____________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)                                         AR20130020010



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ABCMR Record of Proceedings (cont)                                         AR20130020010



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