IN THE CASE OF:  	  

		BOARD DATE:  12 May 2015	  

		DOCKET NUMBER:  AR20140008519 


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 her:

   a.  DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her service in Kuwait; and

   b.  DA Form 199 (Physical Evaluation Board (PEB) Proceedings) to show she retired due to disability for:

* an anxiety disorder received in the line of duty as a direct result of armed conflict or an instrumentality of war
* a traumatic brain injury (TBI) and seizures

2.  The applicant states, in effect, that her anxiety disorder is combat-related and her PEB Proceedings are incorrect as she has been diagnosed with TBI and she has seizures.  Further, her Kuwait service is not listed on her DD Form 214.

3.  The applicant provides:

* DA Form 199 with allied documents
* Enlisted Record Brief (ERB)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Enlisted Distribution Assignment System (EDAS) Soldier Record
* Promotion Point Update and Promotion Board Proceedings
* Miscellaneous post-service 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.  Having prior inactive service, the applicant enlisted in the Regular Army on 
18 March 2003 and she served as an ammunition specialist.

3.  Her ERB shows she completed foreign service in:

* Kuwait from 1 January 2004 to 1 January 2005
* Afghanistan from 4 March 2007 to 1 March 2008

4.  On 7 March 2008, the applicant completed a TBI Questionnaire at Fort Carson, CO after returning from Afghanistan.  She stated that she "had no injury this deployment.  However some of my current symptoms are from a past deployment."  She reported headaches and memory and sleep problems.

5.  On 24 November 2008, she received a psychiatric evaluation at Evans Army Community Hospital (EACH), Fort Carson, CO.  The notes indicate that the applicant claimed post-traumatic stress disorder (PTSD) but was unable to describe any stressor exposure event that occurred to validate her diagnosis.  The applicant had ongoing and increasing conflicts with her chain of command.  She had been arrested for simple assault, failure to pay child support, falsification of documents which she denied, and other charges such as disrespecting senior officials.  The psychiatrist found:

The Service Member is in a profoundly negative spiral that she cannot get out of where she is faced with a stressor and reacts with such outwardly aggressive behavior that negative consequences are immediate and severe.  She has been profoundly stressed but has acted in ways that undermine her ability to lead or even to be considered reliable.  She has a pattern of externalizing everything, takes little responsibility for the chaos she has amplified, and does not appear to learn from these events.  Rather others are out to get her.

The Service Member does not fall below retention standards in accordance with Army Regulation 40-501 [Medical Services-Standards of Medical Fitness], Chapter 3….Her symptoms appear to be directly related to her characterological style of dealing with her environment and the amplification of symptoms   appears to be an attempt to get a diagnosis that excuses her behaviors.  She was of sound mind during all past events and is currently of sound mind and mentally responsible for her actions….The Army's best interest may be served by a chapter separation for a character and personality disorder.

6.  An amended neuropsychological evaluation, conducted by a civilian neuropsychologist, shows the applicant was evaluated on three separate occasions between 6 November and 3 December 2009 and diagnosed with multiple concussions, cognitive disorder, and resolving PTSD.  The applicant reported being involved in numerous explosive concussive events with a brief loss of consciousness and some retrograde and anterograde amnesia in 2004.  She was rattled during another event in 2007.  The recommendations were amended to state, in part, that the applicant continued to show some mild residual PTSD-type symptoms, which presented themselves even in the course of the testing situation.  However, it appeared that with the completion of her therapy, her prognosis for a recovery from her PTSD symptoms was good.

7.  An MEB consultation addendum, dated 12 January 2010, shows the applicant attributed her significant anxiety to her deployment during Operation Enduring Freedom (OEF), where she noted the deaths of friends and other service members, and a highly conflicted divorce.

8.  Her record contains a Narrative Summary - Medical Evaluation Board (MEB), dated, 4 February 2010, which shows she was evaluated for mental health conditions, headaches, and neck pain.  The proceedings further show:

	a.  She was screened for TBI on 7 March 2008 following her last deployment and she answered "NO" to any type of injury event having occurred during her deployment.  The applicant contended that she was instructed to answer in the negative because her unit was in places that they were not supposed to be.  However, some of her current symptoms were the result of previous deployments.  She specifically described running into a berm in August 2004 and hitting her helmet on a turret after being blown up during her deployment in 2007.  She reported being a little dazed and confused, but she did not see a medical provider due being on a mission and she denied loss of consciousness from this incident.

	b.  She was diagnosed with anxiety disorder (not otherwise specified (NOS)) which failed to meet retention standards under Army Regulation 40-501.  Additionally, she was diagnosed with additional medical conditions which did not fall below retention standards, which included:

* mixed headache syndrome with reasonable control since July 2009
* personality disorder
* mild neck pain

	c.  She agreed to disagree with the anxiety disorder diagnoses stating that a civilian psychologist had diagnosed her with PTSD, but she was doing much better.  She commented that she was a strong individual and felt that she could lead, that she could perform the duties of her military occupational specialty, that she could perform general Soldier skills, and that she did not have any true cognitive impairment as evidenced by her 3.8 GPA.

	d.  Her case was referred to the PEB for adjudication of fitness for duty.

9.  On 14 June 2010, an informal PEB convened at Fort Lewis, WA.  The PEB found the applicant physically unfit for continuation on active duty due to an anxiety disorder which occurred in the aftermath of her deployment to Afghanistan during 2007-2008 and personal stressors following rest and recuperation.

   a.  The PEB recommended a combined rating of 30 percent and that she be permanently retired due to disability.
   
	b.  The PEB made the recommended findings that, if retired because of disability:

		(1)  her retirement would not be based on a disability from an injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law; and

		(2)  the disability did not result from a combat related injury as defined in Title 26, U.S. Code, Chapter 104.

	c.  On 9 June 2010, the applicant concurred with the PEB's findings and recommendations and waived a formal hearing of her case.
   d.  On 14 June 2010, the PEB findings and recommendation were approved for the Secretary of the Army.

10.  On 18 November 2010, she was retired due to permanent disability under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(1).  The DD Form 214 she was issued shows she completed 7 years, 8 months, and 1 day of active service during the period.  

11.  Item 18 (Remarks) of her DD Form 214 does not list foreign service in Kuwait.

12.  She provides post-service medical progress notes from the Eastern Colorado Health Care System, dated 24 November 2010.  These progress notes are titled “TBI Treatment Plan” and list a history of concussion/mild TBI, post-concussive headaches, PTSD, depression, anxiety among her current medical conditions.

13.  On 28 January 2011, the Army Disability Rating Review Board (ADRRB) denied the applicant's request for a higher disability rating for her anxiety disorder.  The Board noted that she did not show that her anxiety disorder should be rated higher than 30 percent and she had not shown that her other conditions, specifically, PTSD, cognitive difficulties including memory loss, post concussive syndrome, sleep disorder, and headaches, should be determined as unfitting and assigned a disability rating.

14.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

15.  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.

16.  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.  It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  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.  The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

17.  Department of Defense Instruction Number 1332.18, subject:  Disability Evaluation System, establishes policy, assigns responsibilities, and provides procedures for referral, evaluation, return to duty, separation, or retirement of Service members for disability.  It states, in part, that the PEB renders a final decision on whether an injury or disease that makes the Service member unfit or that contributes to unfitness was incurred in combat with an enemy of the United States, was the result of armed conflict, or was caused by an instrumentality of war during war.  It provides, in pertinent part, the definitions listed below:

	a.  While Engaged in Hazardous Service.  Such service includes, but is not limited to, aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty.

	b.  Under Conditions Simulating War.  In general, this covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, and leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; rappelling; and negotiation of combat confidence and obstacle courses.  It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports.

	c.  Caused by an Instrumentality of War.  The criteria are met if a disability was incurred during any period of service as a result of wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material.  However, there must be a direct causal relationship between the instrumentality of war and the disability.

18.  Army Regulation 635-8 (Separation Processing and Documents) at the time established standardized policy for the preparation of the DD Form 214.  It states for item 18, in part, enter “SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates).”

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests her foreign service in Kuwait be added to her DD Form 214.  Further, she contends that the PEB failed to evaluate her TBI and seizures and her anxiety disorder should have been determined to be the direct result of armed conflict or an instrumentality of war. 

2.  The evidence of record shows she served in Kuwait from 1 January 2004 to 
1 January 2005; therefore, this foreign service should be added to her DD Form 214.

3.  In February 2010, an MEB considered several of the applicant's medical conditions to include anxiety disorder, mixed headache syndrome, personality disorder, and mild neck pain.  The MEB found the applicant's anxiety disorder was the only one of her conditions that failed to meet retention standards.  The applicant disagreed with the MEB findings commenting that she felt she was capable of performing her duties and did not suffer from any cognitive limitations.

4.  She was subsequently referred to a PEB which recommended a 30-percent disability rating for an anxiety disorder and that the applicant be permanently retired due to disability.  On 9 June 2010, she concurred with the PEB findings and waived her right to a formal hearing of her case.  Accordingly, she was medically retired on 18 November 2010.

5.  The traumatic events that she reports having occurred in Kuwait/Afghanistan cannot be confirmed, and the available evidence suggests that she had additional personal stressors which contributed to her diagnoses; as such, and based on the available evidence, her anxiety disorder does not meet the criteria to be defined as combat-related or as the result of an instrumentality of war.

6.  The available record does not show the applicant was diagnosed with a TBI while on active duty despite numerous reports of having been involved in concussive events.  Nonetheless, her post-service medical record shows she was diagnosed as having a concussion/mild TBI.  This diagnosis is not in question; however, regulatory guidance states that the mere presence of an impairment does not of itself justify a finding of unfitness because of physical disability and, as such, would not automatically necessitate a change to the disposition of her case.

7.  In view of the foregoing, she should be granted partial relief.



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 adding to item 18 of her DD Form 214, the entry "SERVICE IN KUWAIT FROM 20040101 -20050101."

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 correcting her DA Form 199 to show she was recommended for a medical retirement based on an anxiety disorder as a direct result of armed conflict or cause by an instrumentality of war, TBI, and seizures.



      _______ _   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)                                         AR20140008519



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ABCMR Record of Proceedings (cont)                                         AR20140008519



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