IN THE CASE OF:  

		BOARD DATE: 18 December 2014

		DOCKET NUMBER:  AR20140002654 


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 that the reason for his discharge be changed to separation due to disability.

2.  The applicant states he was not given the opportunity to be processed under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) for the purposes of establishing disposition and disability benefits.  The condition for which he was declared unfit for retention clearly showed that it was acquired while serving on active duty in support of Operation Desert Shield/Storm during the period 6 December 1990 to 15 July 1991.  Evidence will show that he was treated and diagnosed with post-traumatic stress disorder (PTSD) and mood depression disorder (MDD) while on active duty orders and neither his commander nor the Puerto Rico Army National Guard (PRARNG) ensured that a line of duty (LOD) was completed prior to his separation.  He should have been referred to the Physical Disability Evaluation System (PDES) process under the presumptive in line of duty (LOD) rule. 

3.  The applicant provides:

	a.  copies of medical treatment records for March 1991 to April 1997;

	b.  DA Form 3349 (Physical Profile), dated 29 April 1991;

	c.  DD Form 214 (Certificate of Release or Discharge from Active Duty) for
6 December 1990 to 15 July 1991;

	d.  a DA Form 3349 , dated 27 February 1997; and

	e.  PRARNG Orders showing he was discharged effective 24 April 1997.

CONSIDERATION OF EVIDENCE:

1.  The applicant was a member of the PRARNG.  He held military occupational specialty (MOS) 31M (Multichannel Transmission Systems Operator).

2.  He served on active duty in support of Operation Desert Shield/Desert Storm from 6 December 1990 to 15 July 1991.  His DD Form 214 shows he served in Southwest Asia from 5 February 1991 to 15 April 1991.

3.  The applicant was honorably released from active duty (REFRAD) by reason of completion of required active service on 15 July 1991 as a specialist (SPC)/
E-4.  He had completed 7 months and 10 days of active duty service during the period covered by the DD Form 214.

4.  His complete service medical records are not available for review.  

5.  He provides:

	a.  Copies of medical records showing he was treated for various conditions, including depression, adjustment disorders, depressed mood, and PTSD from March 1991 to April 1997.

	b.  A DA Form 3349, dated 29 April 1991, showing he was issued a temporary profile (29 April - 29 July 1991).  The Medical Condition is listed as Adjustment Disorder.  Item 8 (Other) states, "Soldier is unfit for retention per AR 40-501 - Chapter 3-36 (Adjustment Disorder), not due to physical disability to be separated administratively" (emphasis added).	

	c.  A 17 September 1996 Psychiatric Evaluation in which the psychiatrist states:  "(The applicant) is a 46 year old male who is under continued psychiatric treatment at VA-SJ hospital with a diagnosis of post-traumatic stress disorder and has become a chronic neuropsychiatric case.  We believe he is not able to be engaged in any military or para-military activities or handle guns."	

	d.  A DA Form 3349, dated 27 February 1997, showing he was issued a profile for "Post Traumatic Stress Disorder Superimposed to Major Depressive Disorder." 

	e.  A 16 April 1997 Puerto Rico National Guard, Headquarters State Area Command, memorandum, Subject:  Physical Profile Board.  The memorandum states, in part, "A Permanent Profile 4 (S) was given to the soldier.  He was found not fit for duty and retention according to AR 40-501, para 3-31." 

	f.  PRARNG orders showing he was honorably discharged effective 24 April 1997.  

	g.  A Puerto Rico National Guard, Office of the G1, memorandum, Subject:  PRARNG Advisory Opinion to Request for ABCMR pertaining to SPC L______, J____ A.  The memorandum states:

		(1)  The applicant incurred and underwent continuous mental health treatment while on active duty.  He received mental health treatment at Wiesbaden, Germany, Walter Reed Army Medical Center, Roosevelt Roads U.S. Naval Station, and Fort Buchanan, Puerto Rico prior to his REFRAD on 15 July 1991. This evidence is sufficient to validate that he received complex medical treatment as a result of his injury incurred in Line of Duty for which he was declared "unfit."  He continued to receive uninterrupted treatment for this condition up to 16 April 1997.  He was then evaluated by a Physical Profile Board conducted by PRARNG medical authorities and he was found unfit for retention.  His chain of command and the PRARNG failed to ensure an informal line of duty was completed prior to his REFRAD and to properly refer him to the Physical Disability Evaluation System (PDES) per AR 635-40 and Department of Defense Instruction (DoDI) 1332.18 (Disability Evaluation System (DES)).

		(2)  There is no evidence to show the applicant was properly counseled as to his right to referral to an MEB/PEB, to determine disability benefits.  It was the commander's responsibility to ensure the applicant was properly counseled concerning this right prior to follow-on with the medical recommendation issued by the Physical Profile Board. 

6.  Army Regulation 635-40 establishes the Army 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.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and/or severance pay benefits:

* the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty for training
* the disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence

7.  Army Regulation 635-40, paragraph 3-2b(1), states "Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service." 

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was seen for various medical issues during his period of service, including adjustment disorder and depression.  

2.  His DA Form 3349 dated 29 April 1991 shows that before he was REFRAD following his active duty in support of Operation Desert Shield/Desert Storm, he was determined to have an adjustment disorder (not due to physical disability) and was recommended for administrative separation as soon as possible.  He should have been discharged rather than REFRAD.

3.  Subsequent to his REFRAD he was diagnosed with PTSD, found unfit for retention and discharged from the ARNG.  

4.  There is no evidence that shows he was properly counseled as to his right to be referred to the PDES for screening by a medical evaluation board (MEB) based upon his PTSD, which may be presumed to have been issued during the Gulf War.  It was the commander's responsibility to ensure proper counseling concerning his right to follow-up with any medical recommendations issued by the Physical Profile Board.

5.  In view of the above, the applicant's request should be granted.

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.  The Office of the Surgeon General (OTSG) is directed to contact the applicant and arrange a physical evaluation; and if appropriate, referral to an MEB and/or PEB.  

	b.  The OTSG is directed to use appropriate invitational travel orders to accomplish the MEB/PEB, if necessary. 
	
	c.  In the event a formal PEB becomes necessary, the applicant will be issued invitational travel orders to participate in the formal PEB.

	d.   Should a determination be made that he should be separated under the PDES, his 24 April 1997 discharge will be voided and he will be discharged due to physical disability, as appropriate, with resulting back severance/retired pay. 

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 changing his discharge to a disability separation 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)                                         AR20110016871



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ABCMR Record of Proceedings (cont)                                         AR20140002654



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