IN THE CASE OF:	  

		BOARD DATE:	  9 September 2014

		DOCKET NUMBER:  AR20130021475 


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 correction of the applicant's honorable discharge to a medical (disability) discharge or, in the alternative, referral of his case to a medical evaluation board (MEB).

2.  Counsel states:

	a.  The applicant was found unsuitable for continued military service based on the diagnosis of "anxiety disorder NOS [not otherwise specified]" and was subsequently discharged.  He was not referred to an MEB as required by Army Regulation 40-501 (Standards of Medical Fitness).  As a result of this violation, he was denied a medical evaluation as well as the right to Army disability benefits for his diagnosed combat injuries.

	b.  The applicant enlisted in the Army on 7 May 2001 and deployed to Iraq in support of Operation Iraqi Freedom from 1 May 2003 to 23 August 2003.  For his service in the Army, including direct combat engagement with the enemy, he was awarded the Combat Infantryman Badge, Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon, Overseas Service Ribbon, and Army Lapel Button.

	c.  The applicant is currently rated 70-percent disabled by the Department of Veterans Affairs (VA) due to post-traumatic stress disorder (PTSD) and receives total disability based upon individual unemployability as a result of his PTSD and other disabling service-connected conditions.

	d.  Upon his return from Iraq in 2003, he began experiencing symptoms of PTSD, including nightmares, headaches, anxiety, and social problems.  He did not immediately seek help for these problems.  Following an incident in which he became violent in his sleep – and at the urging of his wife – he sought treatment.  In January 2005, the treating clinician placed him on a temporary physical profile as a result of his chronic PTSD diagnosis.  The physical profile was to last 3 months and forbade him from carrying or firing his weapon.  The physical profile stated he should not be deployed to a combat/field environment due to his mood symptoms and recommended no driving heavy equipment and no weapons, explosives, or firearms.

	e.  In February 2005, he was seen in the Behavioral Health Clinic for an emergency evaluation which resulted in a Report of Mental Health Status Evaluation.  In that evaluation, the applicant was found unsuitable for continued military service based on the diagnosis of anxiety disorder, NOS.

	f.  According to Army Regulation 40-501, chapter 3, Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB/physical evaluation board (PEB).  The MEB requirement was applicable in the applicant's discharge because anxiety disorder is a condition listed under paragraph 3-33.  This paragraph requires that when there is a persistence or recurrence of symptoms necessitating limitations of duty or duty in a protected environment, or persistence or recurrence of symptoms resulting in interference with effective military performance, the Soldier will be referred to an MEB.

	g.  The applicant had persistence or recurrence of symptoms necessitating limitations of duty or duty in a protected environment as evidenced by the January 2005 temporary physical profile which prohibited him from handling firearms and explosives and from operating heavy machinery.  This physical profile was in effect at the time the Report of Mental Health Status Evaluation was drafted.

	h.  Rather than referring the applicant to an MEB, the psychiatrist made an independent finding that the applicant was not considered to be mentally ill and he did not have a severe mental disorder per Army Regulation 40-501.  The psychiatrist circumvented the Army disability adjudication procedures, depriving the applicant of his right to appear before an MEB/PEB as required by Army regulations.

	i.  Had the applicant been referred to an MEB, it is likely he would ultimately have received a medical discharge by reason of his documented injuries incurred in service, including PTSD, cluster headaches associated with PTSD, bilateral pes planus, lumbar strain, tinnitus, and frostbite of both feet.

3.  Counsel provides:

* the applicant's service personnel and medical records
* the applicant's VA medical records

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 7 May 2001 and trained as an infantryman.  He served in Iraq from 1 May 2003 to 23 August 2003.

3.  A DA Form 3349 (Physical Profile), dated 28 January 2005, shows he was issued a 90-day temporary physical profile for chronic PTSD.  This form specified the following additional functional limitations and capabilities:

* due to the applicant's mood symptoms, he should not be deployed to a combat/field environment
* no driving heavy equipment
* no weapons, explosives, or firearms

4.  A Report of Mental Status Evaluation, dated 24 February 2005, shows he was diagnosed with anxiety disorder.  The psychiatrist stated the applicant:

	a.  did not have a major mental illness;

	b.  did have a minor disorder that manifests with disturbances of perception, thinking, emotional control, and behavior that are sufficiently severe to impair his ability to effectively perform his assigned military duties;

	c.  has a pattern of impulsive behavior and in his current occupational environmental stress is at risk for continued poor adaptive behavior;

	d.  is deemed unsuitable for continued military service on the basis of his diagnosis; and

	e.  is not considered to be mentally ill per Army Regulation 40-501 and did not meet criteria for initiation of an MEB.

5.  His records are void of the specific facts and circumstances surrounding his discharge action.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 13 April 2005 under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), paragraph 5-17, by reason of a physical condition, not a disability.

6.  There is no evidence the applicant was processed through the Army Physical Disability Evaluation System.

7.  Records show the VA granted him service connection for the following medical conditions:

* PTSD – 70 percent
* bilateral pes planus with secondary plantar fasciitis – 30 percent
* cluster headaches associated with PTSD – 30 percent
* frostbite right foot – 10 percent
* frostbite left foot – 10 percent
* status post-left bullous myringitis otitis media and otitis externa – 0 percent
* status post-incision and drainage of perirectal abscess – 0 percent

8.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

9.  Army Regulation 40-501, paragraph 3-33 (Anxiety, Somatoform, or Dissociative Disorders), states an anxiety disorder is a cause for referral to an MEB when persistence or recurrence of symptoms:

* are sufficient to require extended or recurrent hospitalization
* necessitate limitations of duty or duty in a protected environment
* result in interference with effective military performance

DISCUSSION AND CONCLUSIONS:

1.  The applicant was issued a temporary physical profile for chronic PTSD in January 2005 with functional limitations and capabilities.  He was diagnosed with an anxiety disorder in February 2005.

2.  He was honorably discharged for a physical condition, not a disability, in April 2005.

3.  Army Regulation 40-501 states an anxiety disorder is a cause for referral to an MEB when persistence or recurrence of symptoms necessitate limitations of duty or result in interference with effective military performance.

4.  There is no evidence the applicant was processed through the Army Physical Disability Evaluation System (MEB/PEB).

5.  It appears that an MEB is warranted since he was diagnosed with an anxiety disorder severe enough to impair his ability to effectively perform his assigned military duties prior to his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

	a.  issuing him invitational travel orders for the purpose of undergoing an MEB and PEB;

	b.  directing him to report for medical evaluation at the nearest available military medical treatment facility to his current residence; and

	c.  providing MEB and/or PEB findings and recommendations for further action, as necessary.

2.  The Board further determined 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 to showing he was medically discharged at this time.



      _____________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)                                         AR20130021475



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ABCMR Record of Proceedings (cont)                                         AR20130021475



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