IN THE CASE OF:	  

		BOARD DATE:	  6 January 2015

		DOCKET NUMBER:  AR20140005970 


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 reconsideration of his earlier request for correction of his records to show he was medically retired.  Specifically, he requests a personal appearance before the Board and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in:

* Item 23 (Type of Separation) – Retirement
* Item 25 (Separation Authority) – Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) paragraph 4-24b(1)
* Item 26 (Separation Code) – "SFJ"
* Item 27 (Reentry Code) – "4"
* Item 28 (Narrative Reason for Separation) – Disability, permanent

2.  The applicant states:

* he made his claim as a matter of equity given that he already has a permanent 100-percent rating from the Department of Veterans Affairs (VA)
* his evidence points out the anxiety that existed before his service, unbeknownst to him, which was aggravated by his service-connected disability
* the Army erred in failing to identify, treat, and rate his anxiety
* after performing his due diligence in presenting himself for treatment, Army civilian psychiatrists and his chain of command at Fort Hood erred in failing to identify his post-traumatic stress disorder (PTSD) symptoms and refer him to a medical evaluation board (MEB)
* his unit was focused on other things such as moving from Texas to Colorado and  follow-on assignments and deployments to Afghanistan and Iraq
* his unit knew he was receiving Seroquel/Quetiapine as treatment and that it caused him to be asleep or somnolent at all times and impacted his deployability
* he was too dazed to self-advocate and his chain of command set him up for failure in not insisting that he receive further PTSD treatment and a rating from the Army

3.  The applicant provides:

* self-authored statement
* medical treatment records

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 AR20130001926, on 24 October 2013.

2.  The applicant provided new evidence in the form of two letters from his psychiatrist that warrants reconsideration by the Board. 

3.  The applicant enlisted in the Regular Army on 14 July 2005.

4.  His Enlisted Record Brief shows he served in Iraq from 29 November 2005 to 20 October 2006.

5.  His complete service medical records are not available for review.  The available medical records show he was seen on several occasions at the Darnall Army Medical Center, Fort Hood, TX.  These health record documents contain the following information:

   a.  On 3 January 2007, he was seen at the Social Work Care Management Clinic for his mood swings.  The social worker provided a history of the applicant's illness and she said the applicant indicated he had always had some issues controlling his mood and when he was younger this included his temper.  She said he reported receiving counseling/therapy when he was in high school for a brief time to assist him with some anger issues.  While home on leave post deployment, the applicant's mother suggested he find someone to talk to on base.  He denied symptoms of combat stress, but then admitted to not dealing well with crowds.  He was released without limitations.
   
   b.  On 12 February 2007, he was seen at the Psychology Counseling Center for a medical evaluation.  The psychiatrist said the applicant endorsed mood swings, 1 to 2 per week since childhood.  He alternates with depressed episodes with irritability and "self-loathing" that lasts 1 to 2 plus days.  He had one suicide gesture in Iraq, he said he put his M-16 in his mouth, "but I did not want to hurt my Mom."  He has never had a long-lasting relationship and marks loneliness as a stressor.  He was deployed in November 2005 to October 2006, was a "route cleaner," and he was never shot at or blown-up.  The psychiatrist said her impression was of probable cyclothymia (mood disorder) with narcissism and possible obsessive compulsive personality traits.  He was diagnosed with episodic mood disorder. 
   
   c.  On 20 February 2007, he was seen at the Psychology Counseling Center for a follow-up appointment.  The psychiatrist stated that at the applicant's last visit he was diagnosed with an episodic mood disorder.  The applicant said the medication prescribed worked well, but he noticed increased irritability when he felt the dose was wearing off in the afternoon.  He was sleeping much more deeply with the medication.  His speech was still somewhat uninterruptable.  They discussed his options.  She said she believed he would be non-deployable with his mood disorder, not able to stay in the infantry because of his foot, and he accepted the idea of getting out. 

	d.  On 7 May 2007, he was seen for third visit at the Psychology Counseling Center.  The psychiatrist said she was fairly certain his diagnosis was cyclothymia, with Axis II traits of obsessive compulsive personality disorder and narcissism.  She said he does not have a personality disorder.  He told the psychiatrist that he was being evaluated for an MEB due to an ankle problem, a malformation/growth defect.  She said she still believed he was non-deployable with his mood disorder, particularly due to the medication he was on causing heat intolerance and water imbalance.  However, her evaluation at this time was that he was not impaired by his psychiatric symptoms to the point that he would require an MEB or administrative discharge from a psychiatric viewpoint.

	e.  On 24 August 2007, the applicant reported to the Psychology Counseling Center for medication follow-up.  He reported that about once a month he may have a short period of time (less than a day) where out of the blue he feels that "life isn't worth living," but he was not suicidal.  He should be getting orders soon and will follow-up with the VA.

6.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows an informal PEB convened on 15 August 2007.  The PEB found chronic pain, left ankle status post calcaneonavicumar coalition release.  The board stated that there was compelling evidence to support a finding that the condition existed prior to service (EPTS) and was not permanently aggravated beyond natural progression by such service.  The board found the applicant was physically unfit and recommended a 0% disability rating.  The findings of the PEB were approved on 6 September 2007.

7.  His record is void of his concurrence and/or non-concurrence with the PEB findings.

8.  On 3 October 2007, he was honorably discharged.  He completed 2 years, 2 months, and 20 days of creditable active service.  His DD Form 214 shows in: 

* Item 23 – Discharge
* Item 25 – Army Regulation 635-40 paragraph 4-24b(4)
* Item 26 – "JFM"
* Item 27 – "3"
* Item 28 – Disability, EPTS, PEB

9.  The applicant provided two evaluations, dated 8 January 2008 and 15 June 2010, prepared by his physician in support of his claim to the VA.

   a.  His evaluation, dated 8 January 2008, shows he was seen for his original psychiatric disability evaluation of the possible condition of bilateral cyclothymic disorder.  It was opined the applicant did not suffer from cyclothymic disorder and there was no clinically significant mental health problem at that time.  Further, he denied cardinal symptoms of PTSD.
   
   b.  His evaluation, dated 15 June 2010, shows he was referred for an evaluation concerning possible bi-polar disorder.  It was opined that (1) the applicant did not suffer from bi-polar disorder and he did not meet the criteria for PTSD in 2008, (2) his anxiety disorder arose prior to his service in the Army and it was exacerbated by his combat exposure and symptoms of PTSD, (3) he developed PTSD as a result of serving in a combat zone, and (4) he was diagnosed in October 2009 as suffering from PTSD. 
   
   c.  His evaluation, dated 15 June 2010, also shows the applicant sustained a mild head injury in August 2009 when he was in a bicycle accident and subsequently received several staples to his head; however, he did not lose consciousness.  The evaluation further shows the applicant stated, "I don't think they ever really listened to me about what I went through in Iraq.  I don't think they wanted to hear that.  They made up their mind that I was bi-polar and that was the end of it." 

10.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System 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 office, grade, rank, or rating.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability.

	a.  Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

	b.  Recommendations of the informal PEB are recorded on a DA Form 199.  Item 13 of the DA Form 199 lists the election options available to the Soldier for informal determinations.  These include:

* concurrence with the findings and recommendations and waiver of a formal hearing
* nonconcurrence with the findings and recommendations, submission of a rebuttal explaining the Soldier's reasons for nonconcurrence, and waiver of a formal hearing
* demand for a formal hearing with or without personal appearance
* choice of counsel if a hearing is demanded

   c.  Soldiers indicate their elections by placing a checkmark in item 13 and signing and dating the original and the medical treatment facility copies.

11.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

12.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice on the part of the Army.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Furthermore, unlike the U.S. Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

13.  Army Regulation 15-185 (ABCMR), paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR.  The Director, ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been medically retired based upon his PTSD.

2.  Although the VA diagnosed the applicant with PTSD, he was processed through the PDES and discharged based upon his unfitting condition of chronic pain, left ankle, status post calcaneonavicular coalition release, an EPTS condition that was not permanently aggravated by service.

3.  His records are void of evidence and he fails to provide evidence showing he was diagnosed with or suffered from PTSD while he was on active duty or that this condition is what caused him to be separated for being medically unfit for retention.  Even the VA opined that he did not have PTSD in 2008, and he was just diagnosed with PTSD in 2009 (2 years after he separated).

4.  The fact that the VA granted him a service-connected disability rating for PTSD after his discharge from active duty has no bearing in this case.  A VA service-connected disability rating does not establish entitlement to a "medical discharge" or "medical retirement."  The VA awards ratings because a medical condition is "service-connected" and affects the individual's civilian employability.  Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

5.  Although the applicant requested to personally appear before the Board, it was determined that there was sufficient evidence available for fair and impartial consideration of his case.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ___x ____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130001926, dated 24 October 2013.



      ___________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)                                         AR20140005970



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ABCMR Record of Proceedings (cont)                                         AR20140005970



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