IN THE CASE OF:  	  

		BOARD DATE:  27 August 2015	  

		DOCKET NUMBER:  AR20140020507 


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 records be corrected to show he was medically retired.

2.  The applicant states, in effect:

* he believes the only reason he was separated from military service was because of the malice and malfeasance of his now former wife; she was determined to end his military career
* he was surprised to receive a letter from the District of Columbia Army National Guard (DCARNG) telling him he had been discharged; he later learned his former spouse had maliciously and falsely submitted a letter on his behalf requesting the resignation of his commission
* at the time of his discharge from the DCARNG, he was suffering from severe post-traumatic stress disorder (PTSD) and was taking potent medications
* he was the survivor of three combat deployments (Guantanamo, Cuba and Iraq) and had chronic PTSD and a myriad of other combat-related afflictions
* he has since been deemed to be totally disabled and has been awarded a 100 percent disability rating by the Department of Veterans Affairs (VA)
* he did not submit his application earlier because he was not in the right frame of mind to manage anything else in his life except the survival of his PTSD; he has been institutionalized and is now tragically disabled
* many of his records, to include his military personnel and military medical records, were destroyed when he went through his divorce; he was forced to vacate his residence under duress

3.  The applicant provides:

* letter, dated 15 August 2013, sent by the Veterans of Foreign Wars of the U.S. (VFW) to VA stating the VFW was appointed by the applicant as his representative; VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) attached
* letter, undated, sent by VA addressed to an unnamed "Veteran" stating the Veteran has been referred to the Trauma Recovery Program in Tampa, FL for treatment of PTSD
* three letters of support
* page two of a DA Form 67-9 (Officer Evaluation Report) for the period 1 October 2005 through 30 September 2006
* 14 pages with photocopies of DD Forms 689 (Individual Sick Slip) dating between 1994 and 2006 (part of a mixed grouping of photocopied documents)
* 14 pages with photocopies of Standard Form (SF) 600 (Chronological Record of Medical Care) dating between 2001 and 2004 (part of a mixed grouping of photocopied documents)
* two photocopies of a SF 513 (Consultation Sheet) (part of a mixed grouping of photocopied documents)
* photocopy of second page of a DA Form 7349-R (Initial Medical Review - Annual Medical Certificate) (part of a mixed grouping of photocopied documents)
* photocopy of a DA Form 2173 (Statement of Medical Examination and Duty Status) (part of a mixed grouping of photocopied documents)
* memorandum, dated 30 June (year unclear), Joint Task Force Guantanamo, subject:  Demobilization Medical Processing (part of a mixed grouping of photocopied documents) 
* two photocopies of a memorandum, dated 9 July 2004, DCARNG, subject: Medical Documents (part of a mixed grouping of photocopied documents)
* photocopy of a DA Form 5181 (Screening Note of Acute Medical Care (part of a mixed grouping of photocopied documents)
* photocopy of an SF 93 (Report of Medical History) (part of a mixed grouping of photocopied documents)
* VA Rating Decision, dated 14 April 2010
* letter from VA, dated 2 June 2010, addressed to the applicant
* VA Rating Decision, dated 28 May 2014
* 86 sequential pages of VA medical records dating from 2009
* 87 sequential pages of VA medical records dating from 2009
* 52 pages of VA medical records dating between 2009 and 2014
* 138 pages of VA medical records dating from 2013
* 282 sequential pages of My Health-eVet VA medical records dating from 2013
* VA Regional Office Automated Medical Information Exchange Compensation and Pension Examination Request Worksheet with a date ordered shown as 28 May 2014, completed by a Veterans Benefits Administration Rating Official
* Quality, Timeliness, Customer Service (QTC) Medical Services, incorporated, PTSD Disability Benefits Questionnaire Review, dated 19 December 2013 with VA examination request

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.  After having prior enlisted service in the DCARNG, the applicant was commissioned as a Reserve second lieutenant and executed his oath of office on 15 July 2001.  He was appointed as a military police officer in the DCARNG effective 23 July 2001.

3.  His records show he was mobilized from 1 September 2002 to 8 January 2007.  

4.  A DA Form 67-9, covering the period 20 August 2003 through 6 July 2003, describes his duty performance while he and his unit were deployed to Guantanamo Bay Naval Station in support of Operation Enduring Freedom, Joint Task Force Guantanamo.  The specific dates of this deployment are not shown.

5.  His DA Form 2-1 (Personnel Qualification Record - Part II) states he was deployed to Iraq from on or about 10 October 2005 to 18 October 2006.  No deployments to Guantanamo for any period are shown.
6.  His official military personnel file is void of any orders showing deployments to either Guantanamo or Iraq.  Additionally, there is no documentation showing the resignation of his commission.  Medical records are not included in his available file.

7.  His OMPF reveal he received the following ratings on his last three OERs:

	a.  A change of rater OER from 7 July 2004 through 10 December 2004 shows he performed as a platoon leader.  Part IV (Performance Evaluation - Professionalism) shows a "Yes" rating for the category of Physical (maintains appropriate level of physical fitness and military bearing).  He is also shown as having passed his Army Physical Fitness Test (APFT).

	b.  A change of rater OER from 11 December 2004 through 30 September 2005 shows he performed as a platoon leader.  Part IV shows a "Yes" rating for the category of Physical.  The entry regarding the APFT is blank, and in the rater comments it states no record APFT was taken during the rated period.  No explanation is given as to why the applicant did not take his APFT.

	c.  An annual OER from 1 October 2005 through 30 September 2006 shows he performed duties as a Battalion Battle Captain while deployed in Iraq.  Part IV shows a "Yes" rating for the category of Physical.  The entry for APFT is blank, and in the rater's comment it states no APFT was taken due to combat operations.  Rater and senior rater comments show a decline in the applicant's level of performance:

* the rater stated:

* during the first half of his one year deployment, he essentially did an excellent job
* he was unable to sustain the strong effort
* he expressed a high level of frustration with his leadership and the job with which he had been tasked
* the rater noted the applicant was in control of his destiny and had to decide how he wanted to shape his military career
* the applicant had volunteered for Iraq as well as two previous deployments
* he consistently demonstrated respect for his chain of command, but did not show the same level of respect for his job

* senior rater comments show:

* absolute minimum standards met
* the applicant started the deployment with great ability and
  motivation
* his motivation significantly decreased and he has proven he cannot handle the rigors of combat
* this is the applicant's third deployment and first in a combat zone; the senior rater thought the applicant's third deployment was one too many and recommended placement in a less rigorous duty assignment

8.  Orders 253-080, dated 10 September 2009, issued by the DCARNG, show the applicant was honorably separated effective 28 February 2009 with a reason code of "RJ" (resignation from ARNG).

9.  Orders 266-3, dated 23 September 2009, issued by the National Guard Bureau (NGB) state the applicant was honorably discharged from the Army National Guard of the U.S. effective 28 February 2009, with all appointments in the Reserve of the Army and Army of the U.S. shown as terminated.

10.  The applicant provides:

	a.  Medical documents from between 1994 and 2006 showing treatment for back pain, headaches, and various entries describing flu-like symptoms, chest pain, and ligament damage to his thumb.  Also shown are three DD Forms 689 containing the entry "suicide watch" dated 4 April 2006, 27 April 2006, and 11 September 2006, respectively.

	b.  A VA Rating Decision, dated 14 April 2010, showing he was awarded a disability rating of 10 percent for PTSD with depression.  The effective date was 27 May 2009.

	c.  A letter from VA, dated 2 June 2010, showing his rating for PTSD was increased to 30 percent effective 1 June 2009.

	d.  A VA Rating Decision, date 28 May 2014, showing his 30 percent rating for PTSD was increased to 100 percent effective 8 July 2013.

	e.  VA medical records, dated between 2009 and 2014, describing his evaluations of and treatments for PTSD.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, 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 office, grade, rank, or rating.

	a.  Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  

	b.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

12.  Army Regulation 40-501 (Standards of Medical Fitness) provides medical retention standards and is used by medical evaluation boards (MEB) to determine which medical conditions will be referred to a physical evaluation board (PEB).  Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40.  The PEB will make the determination of fitness or unfitness.

	a.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his/her duties; may compromise or aggravate the Soldier's health or well-being if the Soldier were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual Soldier were to remain in the military service.

	b.  Chapter 7 provides guidance for the physical profile serial system  The profile is based on the function of body systems and their relation to military duties.  There are six factors, designated as:

* "P" for physical capacity or stamina
* "U" for upper extremities
* "L" for lower extremities
* "H" for hearing
* "E" for eyes
* "S" for psychiatric

	c.  Each factor is assigned a numerical designation from 1 to 4.

* "1" represents a high level of medical fitness
* "2" means there are some activity limitations
* "3" equates to significant limitation
* "4" indicates defects of such severity military duty performance is -drastically limited

	d.  The DA Form 3349 is used to record both permanent and temporary profiles.  A profile with a permanent 3 rating for any category requires approval by a physician designated by the military treatment facility commander.  All permanent 3 or 4 profiles are reviewed by a MEB physician or physician approval authority (emphasis added).

13.  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 in the Army rating.  

	a.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.

	b.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge to compensate the individual for loss of civilian employability.

	c.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. Unlike the 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.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military 
Records (ABCMR).

	a.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.

	b.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.

	c.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

15.   PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders.  In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme.  Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.
From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis).  The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma."

16.  PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor.  In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic.  Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress.  Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome.  Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified.  Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat.  Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations.

17.  The DSM fifth revision (DSM-5) was released in May 2013.  This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder.  The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience.  The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters:  intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity.  The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition.

	a.  Criterion A, stressor:  The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) 

		(1)  Direct exposure. 

		(2)  Witnessing, in person.

		(3)  Indirectly, by learning that a close relative or close friend was exposed to trauma.  If the event involved actual or threatened death, it must have been violent or accidental.

		(4)  Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures.

	b.  Criterion B, intrusion symptoms:  The traumatic event is persistently re-experienced in the following way(s): (one required) 

		(1)  Recurrent, involuntary, and intrusive memories. 

		(2)  Traumatic nightmares. 

		(3)  Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. 

		(4)  Intense or prolonged distress after exposure to traumatic reminders. 	

		(5)  Marked physiologic reactivity after exposure to trauma-related stimuli. 

	c.  Criterion C, avoidance:  Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required)

		(1)  Trauma-related thoughts or feelings.

		(2)  Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations).

	d.  Criterion D, negative alterations in cognitions and mood:  Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required)

		(1)  Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs).

		(2)  Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous").

		(3)  Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences.

		(4)  Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame).

		(5)  Markedly diminished interest in (pre-traumatic) significant activities.
Feeling alienated from others (e.g., detachment or estrangement).

		(6)  Constricted affect: persistent inability to experience positive emotions. 

	e.  Criterion E, alterations in arousal and reactivity:  Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required)

		(1)  Irritable or aggressive behavior.

		(2)  Self-destructive or reckless behavior.

		(3)  Hypervigilance.

		(4)  Exaggerated startle response.

		(5)  Problems in concentration.

		(6)  Sleep disturbance.

	f.  Criterion F, duration:  Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. 

	g.  Criterion G, functional significance:  Significant symptom-related distress or functional impairment (e.g., social, occupational).

	h.  Criterion H, exclusion:  Disturbance is not due to medication, substance

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, to change his DCARNG discharge from a resignation to showing he was medically retired and placed on the permanent disability retired list.

	a.  He contends his former spouse submitted his resignation without his knowledge or consent.  Additionally, he has been diagnosed with PTSD, which has been attributed to his service at the Guantanamo Detention Center and his deployment to Iraq.

	b.  His condition has gotten progressively worse to the point where VA has now assigned a 100 percent rating for his PTSD.

2.  He provides considerable medical evidence showing his diagnosis and treatment of PTSD by VA, but all entries date from after his honorable discharge on 28 February 2009.

	a.  No proof is provided, nor do his available records show, that he was diagnosed and treated for PTSD prior to his resignation and honorable discharge.

* there is no evidence he was ever given a physical profile at either a level 3 or 4 for PTSD, which would have required a review by a MEB physician
* there is no evidence he was unable to perform his duties as a result of a diagnosis of PTSD
* while his last OER, covering the period of his deployment in Iraq, describes a significant decrease in duty performance, this is attributed to a lack of motivation, as well as a high level of frustration with both his leadership and his job, rather than being the result of a behavioral health concern such as PTSD

	b.  Further, he submits extracts from his military medical records showing a history of back pain.

* he includes no verification that his back condition was severe enough to require him to be given a permanent physical profile at a level 3 or 4
* there is no indication he was unable to perform his duties as a result of his back condition

3.  He asserts his former spouse submitted the resignation of his commission without either his knowledge or consent.  He does not include substantiating evidence to support this claim.  The Board presumes administrative regularity and, as such, the fact that orders were prepared suggests his application for resignation was properly submitted, reviewed, and approved by the appropriate authority.  The Board is not an investigative body, and the burden is on the applicant to provide the evidence required to show his contentions are valid.  On this basis, there is insufficient evidence to show an injustice or error has occurred.  

4.  The applicant shows his PTSD was first rated by VA at 10 percent (effective 27 May 2009), then 30 percent, and, as of 8 July 2013, he has been awarded a 100 percent disability rating.  An award or rating by another agency does not establish error by the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining physical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service-connected) and how it may affect the individual's civilian employability.

5.  Given the foregoing, there is insufficient basis upon which to grant the requested relief.

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 for correction of the records of the individual concerned.



      ____________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)                                         AR20140020507





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ABCMR Record of Proceedings (cont)                                         AR20140020507



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