IN THE CASE OF:	  

		BOARD DATE:	  20 January 2015

		DOCKET NUMBER:  AR20140015345 


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 his administrative discharge be changed to a medical retirement due to his diagnosis of post-traumatic stress disorder (PTSD) during his military service.

2.  The applicant states the Army failed to properly evaluate the diagnosis and symptoms of PTSD.

3.  The applicant provides a memorandum in support of his application with supporting documents.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's administrative discharge be changed to a medical retirement due to his diagnosis of PTSD during his military service.

2.  Counsel states:

	a.  During his first deployment to Iraq, the applicant experienced a very active and stressful tour in which he was involved in the Fallujah offensive.  He was attached to an infantry battalion and participated in numerous combat patrols.  He reported he engaged in direct combat with the enemy where he witnessed the death of coalition and enemy forces and felt that his life was seriously in danger.  He witnessed "his commanding officer being executed and his sergeant major being shot in the forehead."  The applicant "shot an enemy person and allowed him to bleed to death."
	b.  During his second deployment he had many of the same experiences as he had on his first deployment.  He participated in combat patrols and was exposed to improvised explosive devices (IED).

	c.  At the end of his second tour of duty in Iraq, he reported symptoms of back pain and headaches.  He was still feeling tired after sleeping, and he had difficulty remembering things.  He also reported symptoms of having nightmares, attempting to avoid thoughts of combat, being easily startled, and having feelings of being detached from his surroundings.  He stated he had thoughts or concerns that he might "lose control with someone."

	d.  In January 2006, he returned to his duty station at Fort Riley, KS.  In May to June 2006 he began to experience significant sadness, irritability, and hopelessness.  His other symptoms of avoidance, hypervigilance, difficulty with sleeping, isolation, and anxiousness from his first deployment began to intensify.

	e.  On 27 June 2006, he was taken to the emergency room at Mercy Regional Health Center in Manhattan, KS after he had an episode where he blacked out after drinking 17 beers and woke up with multiple abrasions on both of his forearms and chest.  He received a mental health screening and the examiner noted the applicant was restless/overactive, reliving traumatic events, impulsive and "expects to be exploited or harmed by others."   As a result of the screening he was given a formal Axis I diagnosis of PTSD, and diagnoses of bipolar depressed mood and alcohol abuse were ruled out.  He was also given an Axis II diagnosis of personality disorder not otherwise specified (NOS).

	f.  On 17 July 2006, he was evaluated at the Irwin Army Hospital Department of Behavioral Health.  The examiner noted that the applicant was depressed, but that his behavior was normal.  Contrary to the diagnosis of PTSD rendered only a month before, the examiner issued the applicant Axis I diagnoses of anxiety disorder NOS and alcohol abuse, but omitted any diagnosis of PTSD.  He was also issued an Axis II diagnosis of personality disorder NOS with cluster B traits.

	g.  On 4 September 2007, the Department of Veterans Affairs (VA) granted the applicant service connection for PTSD with major depressive disorder with a disability rating of 30 percent (%).

	h.  On 14 June 2014, Dr. NM, a psychologist, was retained to perform an independent expert psychological evaluation of the applicant.  Dr. NM confirmed a diagnosis of PTSD with symptoms consistent with a disability rating of no less than 30% based on the VA's Schedule of Ratings for Mental Disorders.  Dr. NM determined that the results of her testing and analysis "did not support personality based pathology, therefore a diagnosis of personality disorder cannot be given at this time."  Dr. NM found that current symptoms could be accounted for by PTSD and that the applicant did not endorse childhood or early adulthood patterns of behavior that caused significant distress or impairment prior to his diagnosis of PTSD.

	i.  The Army violated Department of Defense and Army regulations and guidelines in discharging the applicant for a personality disorder.  Discharge under Army Regulation 635-200, paragraph 5-13 was inappropriate because preferred separation methods were available.  If the Army had followed proper procedures the applicant would have been found medically unfit and retired with full benefits.

3.  Counsel provides a 19-page brief with six exhibits and an index, including the applicant's 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.  On 15 January 2002, he enlisted in the Regular Army for 3 years.  On 11 April 2004, he immediately reenlisted for 5 years.

3.  His Enlisted Record Brief, dated 18 September 2006, shows the following deployments to Iraq:

* 26 April 2003 - 30 April 2004
* 28 July 2005 - 19 January 2006

4.  A Discharge Summary from Salina Regional Health Center, Salina, KS shows he was admitted on 12 June 2006 and discharged on 28 August 2006 from the center.  Discharge diagnoses included in Axis I were PTSD, mild to moderate; major depression, moderate, recurrent; and a history of alcohol abuse.

5.  He was referred to Dr. PF, a psychologist, at the Salina Regional Health Center for assessment for personality disorder and possible malingering.  Based on evaluations on 20 and 22 June and 12 July 2006, Dr. PF's diagnostic impressions included PTSD (mild); major depression, moderate, recurrent; history of alcohol abuse; rule out bipolar type II; rule out attention deficit disorder. 

6.  On 17 July 2006, he was given a behavioral health evaluation by Captain L, a behavioral specialist.  The examiner found he met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  The examiner found, as a result of evaluation consisting of clinical interview and/or psychometric testing, the applicant merited the following diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders IV:

* Axis I:  anxiety disorder NOS, alcohol abuse
* Axis II:  personality disorder NOS with cluster B traits

7.  The applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-13, by reason of a personality disorder.  He recommended an honorable characterization of service.  The specific reasons were his diagnoses of PTSD, anxiety disorder, alcohol abuse, and personality disorder NOS with cluster B traits.

8.  The commander advised the applicant of his right to:

* submit statements in his own behalf
* be represented by counsel
* obtain copies of documents that would be sent to the separation authority supporting the proposed separation
* request a hearing before an administrative board
* waive any or all of these rights in writing and that failure to respond to within 7 days would constitute a waiver of his rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge

9.  The applicant acknowledged receipt of the notification of separation action, wherein he was advised of the basis for the contemplated separation and of the rights available to him in connection with the action.  Having been afforded the opportunity to consult with appointed counsel he declined the opportunity to speak directly with an attorney and he waived his rights. 

10.  Subsequent to this acknowledgement, the immediate commander initiated separation action against the applicant under the provisions of Army Regulation 635-200, paragraph 5-13.  Factual reasons for the action recommended were the Soldier being diagnosed with PTSD, anxiety disorder NOS, alcohol abuse, and personality disorder NOS with cluster B traits.  The commander stated the applicant had been counseled and through subsequent behavior, had demonstrated a lack of acceptance of rehabilitative measures.  His condition was a deeply ingrained maladaptive pattern of behavior of long duration that interfered with his ability to perform duty.  His intermediate commander recommended approval with an honorable discharge. 

11.  On 18 September 2006, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 5-13 and directed the applicant be issued an honorable characterization of service. 

12.  On 7 October 2006, the applicant was discharged by reason of personality disorder.  He completed 4 years, 8 months, and 23 days of active service that was characterized as honorable.  

13.  In connection with the processing of this case, on 5 November 2014, an advisory opinion was obtained from the Office of The Surgeon General (OTSG), Director of Health Care Delivery.  The advisory official stated the advisory opinion was based on the available documentation from the applicant's time in active duty military service, unless otherwise noted.  A panel of three credentialed, doctoral-level behavioral health clinicians reviewed the applicant's records to minimize variance and ensure quality of findings.

	a.  The applicant enlisted in the U.S. Army on 15 January 2002, at the age of 18 years old, serving on active duty as a combat engineer for 4 years and 3 months. During his time on active duty service, he deployed to an imminent danger pay area three times, where he reportedly participated in numerous combat patrols. He engaged in direct combat and was exposed to IEDs, killed an enemy combatant, and witnessed the death of coalition and enemy forces, to include his Company Executive Officer, who was killed by an explosive device, and his Sergeant Major, who was shot in the forehead.

	b.  The applicant asserts he was improperly evaluated for PTSD prior to his discharge from the Army.  He further affirms he was subsequently awarded a service-connected disability rating of 30% for PTSD with major depressive disorder through the Department of Veteran Affairs (VA), effective 8 October 2006.  In a subsequent VA rating decision dated 31 October 2007, he asserts he was awarded combined service-connected disability rating of 60% for PTSD (30%), headaches (30%), and muscle strain of the lumbar spine (10%).

	c.  The applicant, who had no previous documented history of behavioral healthcare during his time in military service, initially complained of PTSD symptoms approximately four weeks prior to the end of his first deployment to Iraq.  His Post-Deployment Health Assessment dated 24 January 2005 suggests he was experiencing nightmares related to a potentially traumatic experience; was attempting to avoid thinking about the experience or going out of his way to avoid situations that reminded him of it; and was constantly on guard, watchful or easily startled.  He began receiving behavioral health treatment on 9 February 2006, following his second deployment to Iraq, and was diagnosed and treated for PTSD and associated alcohol abuse for approximately 6 months.  On 
7 October 2006, the applicant was administratively separated from the US Army under the provisions of Army Regulation 635-200, chapter 5-13, Personality Disorder.

	d.  The applicant's PTSD diagnosis is sufficiently supported by the available medical record in accordance with the criteria established by the Diagnostic and Statistical Manual of Mental Disorders current at the time of his evaluation and treatment.  He was exposed to potentially traumatic events during military combat.  Criteria were additionally met for re-experiencing, avoidance, and hyperarousal.  The duration of his symptoms was greater than the required one month.  He also experienced clinically significant distress and impairment in occupational and other important areas of functioning.

	e.  His medical record suggests he was consistently diagnosed with PTSD throughout most of his behavioral health treatment.  The diagnosis of personality disorder was added to the medical record on 19 June 2006.  However, there are no symptoms documented in the medical record that support the diagnostic criteria for personality disorder, as established by the Diagnostic and Statistical Manual of Mental Disorders.  In addition, his diagnosis of PTSD was replaced with anxiety disorder NOS, without any supporting diagnostic information.

	f.  On 17 July 2006, the applicant was recommended for administrative separation for personality disorder and anxiety disorder NOS.  The behavioral health provider informed the applicant he had an anxiety condition that was treatable but needed to be administratively separated for personality disorder.

	g.  At the time of his discharge from active duty, the applicant appeared to have continued to meet diagnostic criteria for PTSD with significant impairment in occupational and other functioning.  A Medical Evaluation Board (MEB) would likely have been appropriate in accordance with Army Regulation 40-501
(Physical Evaluation for Retention, Retirement, or Separation) for determination of fitness status.  In addition, his diagnosis of personality disorder was not supported by the medical record.  Therefore, the advisory official supports the narrative reason for separation to be PTSD.

14.  Army Regulation 635-200 prescribes the policy for the administrative separation of enlisted personnel.  Paragraph 5-13 provides for separating members by reason of personality disorder (not amounting to disability) that interferes with assignment or with performance of duty.

15.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

	a.  Paragraph 3–9 provides guidance for the Temporary Disability Retired List (TDRL).  Specifically, it states the TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.  Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208 (10 USC 1208).  In addition, the condition must be determined to be temporary or unstable.

	b.  Paragraph 4-17 provides guidance for Physical Evaluation Boards (PEBs). Specifically, it states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  Its findings and recommendation may be revised. 

16.  The VA Schedule for Ratings Disabilities (VASRD), section 4.129, provides information regarding mental disorders due to traumatic stress.  Specifically, it states that when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than
50 percent and schedule an examination within the 6-month period following the veteran’s discharge to determine whether a change in evaluation is warranted.

17.  The 2008 National Defense Authorization Act (NDAA), section 3.1, effective 28 January 2008, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the VA.

18.  In a 17 July 2009 memorandum, the Office of the Under Secretary of Defense (Personnel and Readiness) directed that as a matter of policy, all three Boards for Correction of Military Records will apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharged after 11 September 2001 and, in such cases where a grant of relief is appropriate, assign a disability rating of not less than 50% for PTSD unfitting conditions for an initial period of 6 months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence.  It would be inequitable to treat PTSD unfitting conditions differently than any other unfitting conditions.  Therefore, as a matter of equity and policy, provisions of Department of Defense or Army regulations or guidelines relied upon by the PEB will not be considered by the ABCMR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication in all cases in which the applicant was discharged on or after 
11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was consistently diagnosed with PTSD throughout most of his behavioral health treatment.  The diagnosis of personality disorder was added to the medical record on 19 June 2006.  However, there are no symptoms documented in the medical record that support the diagnostic criteria for personality disorder, as established by the Diagnostic and Statistical Manual of Mental Disorders.

2.  At the time of his discharge from active duty, the applicant appeared to have continued to meet diagnostic criteria for PTSD with significant impairment in occupational and other functioning.  An MEB would likely have been appropriate in accordance with Army Regulation 40-501 for determination of fitness status.  In addition, his diagnosis of personality disorder was not supported by the medical record.

3.  Under the principles of the 2008 NDAA, the applicant's PTSD conditions warrant correction of his record by voiding his 7 October 2006 discharge by 
reason of personality disorder and to show he was instead retired by reason of disability, temporary on 7 October 2006, and placed on the TDRL on 
8 October 2006, at a 50-percent disability rating.

4.  Based on the available evidence, the U.S. Army Physical Disability Agency (USAPDA) should evaluate the applicant’s medical conditions to determine if his condition 6 months after placement on the TDRL warrants a permanent disability retirement.

5.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant's SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

* retroactively placing the individual on the TDRL for a minimum of 6 months at a 50-percent disability rating for PTSD effective the date initially separated
* the USAPDA evaluating the applicant's medical conditions based on all available evidence to determine the appropriate final disability rating
* paying him any retired pay due


      ____________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)                                         AR20140015345



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140015345



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1