IN THE CASE OF:    

		BOARD DATE:  7 October 2014	  

		DOCKET NUMBER:  AR20140000675 


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 correction of his record to show he was retired for permanent disability.

2.  He states he was discharged due to severe post-traumatic stress disorder (PTSD) and adjustment disorder that should have been rated as a disability.  He should have been discharged under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), not Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  Several documents state he was discharged for PTSD, which is recognized as a disability, yet he was discharged for a mental condition not amounting to a disability.  Because of the error, he has been denied entitlements.  

3.  He describes what he believes to be errors in his discharge processing and how the type of discharge he received affects his access to various privileges and benefits.  He states he believes his case is similar to that of the plaintiffs in Sabo, et al., v. United States.  The plaintiffs contended that the Services illegally denied retiree status and medical benefits to veterans who were diagnosed with PTSD and then separated as unfit for service.  He states, in effect, that he should have been rated in accordance with the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD), which requires a minimum 50 percent (%) rating for PTSD.  His VA rating has been 10% since 2004.  

4.  He provides:

* article regarding rating decisions for veterans with PTSD
* excerpts from his service records
* 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.  On 21 April 1994, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 13M (Multiple Launch Rocket System Crewmember).  He was promoted to sergeant/E-5 effective 1 August 2002.  His record shows he served in Iraq in 2003 and 2004, and he was awarded the Purple Heart.  

3.  His Noncommissioned Officer Evaluation Report (NCOER) for the period ending July 2003 shows his rater gave him "success" ratings for all performance categories and rated his overall potential for promotion and/or positions of greater responsibility as "fully capable."  His senior rater rated his overall performance as "successful" and rated his overall potential for promotion and/or positions of greater responsibility as "superior."  

4.  On 1 March 2004, he was counseled for failing to perform the duties of an NCO by:

* failing to inform his chain of command that he was on medication
* operating machinery while he was on medication
* lying to the battalion commander and to a captain

5.  On 12 May 2004, he was counseled for failing to be ready for a uniform inspection.  

6.  On 17 May 2004, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of military Justice, for:

* failing to go at the time prescribed to his appointed place of duty on or about 24 May 2004
* being derelict in the performance of his duties in that he willfully failed to take medication prescribed by his doctor in the time allotted on or about 9 February 2004
* being derelict in the performance of his duties by willfully failing to have his Class A uniform ready for platoon inspection on 12 May 2004
* making official statements with intent to deceive on or about 25 February 2004

7.  On 18 May 2004, he underwent a mental status evaluation.  The examining psychiatrist stated that he was severely emotionally disabled at the time due to PTSD and that he had developed an adjustment disorder with depressed mood.  She stated he was decompensated and had not improved with 3 months of psychiatric treatment including medications and therapy.  She stated:

* he did not have a severe mental disorder and was not considered mentally disordered
* he did manifest a long-standing disorder of character, behavior, and adaptability of such severity as to preclude adequate military service
* he was to continue mental health treatment at Community Mental Health Services until he was discharged and then with the VA
* it was highly unlikely that he would recover from his symptoms and be able to function in the military environment
* it was unlikely that rehabilitative transfer, continued treatment in the Army system, or other medical interventions would improve his functioning in the military
* she recommended he be discharged under Army Regulation 635-200, paragraph 5-17 due to adjustment disorder with depressed mood 

8.  The examining psychiatrist did not find that he failed to meet retention standards and did not recommend that he be referred to a Physical Evaluation Board (PEB).  

9.  On 25 May 2004, he was counseled for failing to be at his appointed place of duty at the appointed time and failing to keep his chain of command informed of his whereabouts.

10.  His NCOER for the period ending June 2004 shows his rater marked the "NO" block for the Army Values of honor and integrity.  For physical fitness and military bearing, his rater marked the block for "needs improvement (some)."  His rater marked "excellence" for leadership and "success" for all other performance categories and rated his overall potential for promotion and/or positions of greater responsibility as "marginal."  His senior rater rated his overall performance as "fair" and rated his overall potential for promotion and/or positions of greater responsibility as "fair."  

11.  On 23 June 2004, the applicant's battery commander informed him that he was initiating action to separate him under the provisions of Army Regulation 635-200, paragraph 5-17, for a mental condition not amounting to a disability.  The battery commander stated the reasons for the proposed action were that the applicant suffered from PTSD and had developed an adjustment disorder with depressed mood, which was sufficiently severe that his ability to effectively perform his military duties was impaired.  His battery commander advised him of his rights.  

12.  On 25 June 2004, he consulted with counsel who advised him of the basis for his contemplated separation and its effects, of the rights available to him, and of his option to waive his rights.  After consulting with counsel, he waived consideration of his case by an administrative separation board and personal appearance before such a board contingent upon his receipt of an honorable discharge.  He elected not to submit statements in his own behalf.  

13.  On 25 June 2004, his battery commander recommended his discharge under the provisions of Army Regulation 635-200, paragraph 5-17, with his service characterized as honorable.  The battery commander again stated the reason for the recommended action was that the applicant suffered from PTSD and had developed an adjustment disorder with depressed mood.  

14.  On 28 June 2004, the separation authority approved the recommendation and directed the applicant's service be characterized as honorable.  

15.  On 6 July 2004, he was honorably discharged in accordance with the separation authority's decision.  He completed 10 years, 2 months, and 16 days of net active service.  

16.  He provides VA medical records consisting of a list of his medical problems and a list of his medications.  The list of medical problems shows, in part, that he has been diagnosed with major depression (not service connected) and PTSD (service connection unknown).  He has not provided any documentation showing he has been given a service-connected disability rating by the VA.  

17.  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.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation or retirement by reason of disability requires processing through the PDES.

18.  Army Regulation 635-40, chapter 4, contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

19.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement.  

	a.  Paragraph 3-32 states mood disorders may be cause for referral to an MEB if there is persistence or recurrence of symptoms: 

		(1)  sufficient to require extended or recurrent hospitalization; or

		(2)  necessitating limitations of duty or duty in protected environment; or

		(3)  resulting in interference with effective military performance.

	b.  Paragraph 3-36 states situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record partially supports the applicant's request for correction of his record to show he was retired for permanent disability.  

2.  The evidence of record shows the applicant had been diagnosed with PTSD, a condition that may be cause for referral to an MEB if it results in interference with effective military performance.  His record also shows he exhibited a significant decline in his performance after July 2003.  There is insufficient evidence in the available records to definitively show that the decline in his performance was a direct result of PTSD; however, this possibility cannot be ruled out.  

2.  While his diagnosis of adjustment disorder on its own would have been a basis for administrative separation at the time, the diagnosis of PTSD was improperly added as an additional reason for his separation.  If, as the examining psychiatrist stated, he was severely emotionally disabled due to PTSD, he should have been referred to the PDES to determine his fitness for continued service.  In light of the available evidence, he should now be afforded the opportunity to be processed through the PDES for a determination of fitness.  

3.  The applicant requests that he be medically retired.  To do so would be premature.  If warranted based on MEB/PEB findings, the proper authority will direct such action be taken.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X___  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 the Office of The Surgeon General contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders to the applicant.

	a.  In the event a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB.

	b.  All required reviews and approvals will be made subsequent to completion of the formal PEB.
	c.  If a determination is made that he should have been separated through the PDES, these Proceedings serve as the authority to:
      
* void his administrative discharge
* issue the appropriate disability separation 
* pay him all back retired/severance pay less any entitlements already received

2.  The Board further determined that 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 retiring him for permanent disability.



      _______ _   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)                                         AR20140000675





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ABCMR Record of Proceedings (cont)                                         AR20140000675



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