BOARD DATE:	  16 January 2014

		DOCKET NUMBER:  AR20130020635 


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, correction of his record to show he was medically unfit for post-traumatic stress disorder (PTSD) and to change his discharge to a medical retirement with a disability rating. 

2.  The applicant states his discharge is improper because he underwent a medical evaluation board (MEB) whose findings were altered by a forensic psychiatrist thereby forcing him to separate by reason of expiration term of service rather than being medically retired.  Since his discharge, the forensic psychiatrist has been investigated and relieved from duty for changing the diagnosis in order to relinquish the Government of responsibilities for disabilities acquired in combat.  The Medical Command discovered the error in his medical records.  He has since been reevaluated and found to have suffered from PTSD. 

3.  The applicant submits:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* MEB Psychiatric Addendum 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 July 1999 and he held military occupational specialties 35M (Human Intelligence Collector) and 25F (Network Switch Systems Operator/Maintainer). 


2.  He served in Korea and Germany, as well as in Kuwait/Iraq from 3 January 
to 15 August 2003 and from 10 January 2006 to 23 February 2007.  He also extended his enlistment on 22 November 2006 and reenlisted on 4 December 2007.

3.  On 3 December 2010, he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, by reason of completion of required active service.  He received separation pay.

4.  On 23 August 2012, B. J. M-----w, conducted a cell reevaluation of the applicant's behavioral health to assess his current psychiatric fitness for duty.  
Dr. M-----w provided an MEB Addendum that shows a behavioral health diagnosis as follows:

* Axis I:  PTSD
* Axis II:  No Diagnosis
* Axis III:  Left knee pain status post surgical repair in 2002, hypercholesterolemia, migraine headaches
* Axis IV:  Psychosocial and environmental problems
* Axis V:  Global Assessment and Functioning score of 62 (current)

5.  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.

6.  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. 

7.  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.

8.  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 six-month period following the veteran’s discharge to determine whether a change in evaluation is warranted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 23 July 1999 to 3 December 2012.   It appears he was identified as requiring a behavioral health evaluation prior to separation but for unknown reasons this did not happen.  He was discharged due to completion of required active service.  

2.  Subsequent to his discharge, he underwent a fusion cell reevaluation.  The clinical psychologist diagnosed him with PTSD that did not meet retention standards.  This subsequent reevaluation is accepted by the Board.  The applicant is entitled to correction of his records to show PTSD, chronic, as a disabling condition that did not meet retention standards, effective 3 December 2010, the date of his original discharge. 

BOARD VOTE:

___X__  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* adding to his records a diagnosis for "PTSD, fails retention standards"
* voiding his 3 December 2010 discharge
* showing 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



      _______ _   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)                                         AR20130020635



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ABCMR Record of Proceedings (cont)                                         AR20130020635



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