IN THE CASE OF:
BOARD DATE: 27 December 2015
DOCKET NUMBER: AR20140021048
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 previous request for a review of his disability evaluation pertaining to his mental health (MH) condition to show he was retired and placed on the temporary disability retired list (TDRL) on 17 October 2010 vice released from active duty.
2. The applicant states he is providing a new argument and new evidence that were not previously considered.
3. The applicant provides:
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP) for Docket Number AR20140010664
* two memoranda
* Department of Veterans Affairs (VA) Rating Decision
* five pages of email
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
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 AR20140010664 on 23 July 2014.
2. As a new argument, the applicant states:
a. His DD Form 214 should be changed to reflect he was medically retired. He was given an MEB in Germany and was rated 60 percent disabled. The MEB recommended referral to the PEB. The PEB recommended his placement on the TDRL with a combined rating of 60 percent (%) on 9 July 2009. His commander refused to support him during his medical boards and stated that his boards had been cancelled. Therefore, he did not know that the PEB was finalized in 2009 and he remained on active duty until 17 October 2010.
b. This was a complete injustice as he had to deal with severe medical issues on his own and received no support from his command during that time. After an examination by the VA, the VA saw fit to rate him at 70% for
post-traumatic stress disorder (PTSD) which was the identical condition for which was given a 50% rating by the PEB. The VA rating was effective beginning the day after his separation from the Army on 18 October 2010.
c. He received a letter, dated 25 April 2013, from the U.S. Army Physical Disability Agency (USAPDA) and followed all their instructions. The Board did not previously consider all the evidence or his VA ratings. He believes the documents he is providing now show he should have been medically retired and should have received all entitlements due a retired Army veteran.
3. As new evidence, the applicant provides and his record contains:
a. A DA Form 199, dated 9 July 2009, wherein it shows an informal PEB convened at Washington, DC, on 2 July 2009 and confirmed the applicant's unfitting conditions of PTSD and back pain secondary to degenerative disc disease. The PEB found he was physically unfit for continued service, recommended a disability rating of 50% for PTSD and 10% for back pain, found his conditions had not stabilized to a point that a permanent degree of severity could be determined, and assigned a combined temporary disability rating of 60% and placement on the TDRL (emphasis added). On 6 July 2009 he concurred with the PEB findings and recommendation. On 9 July 2009 the Secretary of the Armys representative approved the PEB.
b. An email, dated 3 August 2009, to Mr. B_____, USAPDA, U.S. Army Medical Command (MEDCOM), Walter Reed Army Medical Center (WRAMC), subject: [Applicant's] documents, from Mr. G____, USAPDA, wherein, in pertinent part, statements were received from the applicants commander that questioned the validity of the medical diagnosis because the commander thought the applicant was a malingerer and had lied to medical personnel. When he reviewed the case at the behest of the commander, it was obvious to him that they didn't ask the psychiatrist to clarify the commander's remarks opining the Soldier was exaggerating and the diagnosis was suspect. It was subsequently stated the applicant's case should be returned to the medical treatment facility (MTF) in Germany for a review of the medical data and facts of the case.
c. A memorandum, dated 3 August 2009, subject: Return of PEB Proceedings, RE: [The Applicant], from Mr. T____, Chief, Operations Division, USAPDA, wherein it stated the case was being returned for further evaluation based on the commanders statement. Upon completion of the medical review, all documents and any new proceedings should be returned to the USAPDA for further processing.
d. His DD Form 214 shows he was honorably released from active duty (REFRAD) on 17 October 2010 in the rank/grade of specialist (SPC)/E-4 by reason of completion of required active service and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).
4. As new evidence he also provided a VA Rating Decision dated 2 December 2011. The VA granted the applicant service-connected disability effective 18 October 2010 with a 70% disability rating for PTSD and 10% for thoracic spondylosis (claimed as mid-back condition).
a. He underwent a VA Medical Center (VAMC) MH examination on 10 November 2011 that found he was diagnosed with PTSD with depressive episodes. The MH examiner stated the applicant had current symptoms of impaired impulse control with depression, suspiciousness, sleep impairment, irritability, hypervigilance, and exaggerated startle response. His symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning.
b. He was capable of managing his own finances without difficulty. His global assessment of functioning (GAF) score was 55, which indicated he had moderate symptoms and moderate difficulty in social, occupational, or school functioning. The GAF scale considers psychological, social, and occupational functioning on a 1 (worse) to 100 (best) scale. An evaluation of 70% was granted for his PTSD with depressive episode. Since there was likelihood of improvement, the assigned evaluation was not considered permanent and was subject to a future review examination.
5. The applicant enlisted in the Regular Army on 4 June 2007 in the rank of SPC. On 17 December 2008, he was assigned to Germany. He served in Iraq from 6 April to 12 October 2008. On 2 July 2009 a PEB found he was physically unfit, recommended a disability rating of 50% for PTSD and 10% for back pain, found his conditions had not stabilized to a point that a permanent degree of severity could be determined, assigned a combined temporary disability rating of 60% and recommended his placement on the TDRL.
6. He concurred with the PEB and on 9 July 2009 the Secretary of the Armys representative approved the PEB. A review of his records shows the USAPDA added the approved DA Form 199 to his permanent file on 13 July 2009.
7. It is unclear what transpired between July 2009 and October 2010. However, his record is void of any additional documents or proceedings related to a review or revision of the PEB as approved by the Secretary of the Army on 9 July 2009. The DD Form 214 he was issued shows he was honorably REFRAD on 17 October 2010 by reason of completion of required active service and transferred to the USAR. The orders directing his REFRAD are not available for review with this case.
8. In July 2014, based on the applicant's request, the DOD Physical Disability Board of Review (PDBR) MH Special Review Panel (SRP) conducted a comprehensive review of his submissions and records for evidence of inappropriate changes in the diagnosis of a MH condition during processing through the military disability system. Only the MH condition was addressed by this review; any other conditions or requirements were outside the SRP scope.
9. In the processing of AR20140010664 an advisory opinion was received from the PDBR SRP. The advisory opinion stated, in part, the applicant was rated at 50% for PTSD and placed on the TDRL on 18 October 2010 for PTSD. All his medical treatment records were reviewed and it was determined there was no evidence that showed his MH diagnosis had changed that would have warranted a higher rating. Therefore, his rating of 50% for PTSD and placement on the TDRL were appropriate.
10. On 23 July 2014, the Board denied the applicant's request and determined there should be no change to his record as the PEB appropriately granted a TDRL entry rating of 50% for PTSD.
11. In the processing of this case an advisory opinion dated 27 March 2015, was received from the USAPDA Legal Advisor. The advisory official recommended approval of the applicant's request that his records be corrected to show a disability retirement in 2010. He opined that:
a. The applicant had a PEB finding of unfit for duty for PTSD at 50% and back pain at 10% for a combined disability rating of 60%. The PEB recommended placement on the TDRL. The applicant concurred with the findings and the PEB findings were approved by the Secretary of the Amys representative on 9 July 2009.
b. The PEB processing was suspended and returned to the MTF in August 2009 to have the MTF reconsider the diagnosis of PTSD. The available case file does not contain any information from the MTF regarding any change in his diagnosis or level of disability. The case was not returned to the PEB or the USAPDA as directed and the applicant was allowed to separate on 17 October 2010.
c. Based on the above, it is recommended the applicant's records be changed to reflect that on 18 October 2010 the applicant was retired due to disability and placed on the TDRL with re-evaluation to have occurred, based on any available VA medical or disability rating documents, within 18 months after placement on the TDRL.
12. In a response to the advisory opinion, dated 21 April 2015, the applicant stated he was in total agreement with the USAPDA recommendations and requests placement on the permanent disability retired list (PDRL) because he continues to be treated by the VA for PTSD rated at 70% and that hasn't changed since his separation from the Army. He is hopeful that this will take place to correct the error and injustice.
13. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.
a. Paragraph 7-2 (Reasons for placement on the temporary disability retired list or TDRL) states a Soldiers name may be placed on the TDRL when it is determined that the Soldier is qualified for disability retirement under Title 10, U.S. Code, section 1201 but for the fact that his or her disability is determined not to be of a permanent nature and stable.
b. Paragraph 7-4 (Requirement for periodic medical examination and PEB evaluation) states a Soldier on the TDRL must undergo a periodic medical examination. A Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the Soldier was temporarily retired. Soldiers who have waived retired pay to receive compensation from the VA, continue to be retired Army Soldiers. These Soldiers must undergo examinations when ordered by the Commander, USAPDA, acting on behalf of the Secretary of the Army.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record confirms in July 2009 a PEB found the applicant was unfit for further service for PTSD rated at 50% and back pain rated at 10% for a combined disability rating of 60% and placement on the TDRL. As stated by the advisory official, there is no evidence that shows the PEB was subsequently reversed or revised.
2. Although the PEB findings were approved on behalf of the Secretary of the Army and are properly filed in his record, the applicant was erroneously REFRAD on 17 October 2010 and transferred to the USAR. In addition, this error was compounded when in July 2014 the ABCMR denied his request for a change in his records as the Board found his entry on the TDRL for PTSD rated at 50% was appropriate. However, it is apparent the Board failed to note the applicant had been REFRAD and had not been placed on the TDRL as required (emphasis added).
3. With respect to his additional request to be placed on the PDRL, he has not provided sufficient evidence to support this request. He provided a VA Rating Decision that shows in November 2011 he underwent a VAMC MH evaluation that granted him a temporary rating of 70% for PTSD. The decision opined that there was a likelihood of improvement of his condition. He did not provide recent VA Rating Decisions to support his contention that he was still rated at 70% disabled with no improvement.
4. In view of the foregoing, it would be appropriate to correct his records to shows he was honorably retired on 17 October 2010 by reason of temporary disability and transferred to the TDRL on 18 October 2010 with entitlement to back pay and allowances as a result of this correction.
5. The applicants Enlisted Record Brief at the time of his separation shows he is married. Therefore, a Survivor Benefit Plan (SBP) election should 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 and he could incur financial obligations for costs associated with the SBP. 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.
6. In addition, the applicant should be contacted by the USAPDA and scheduled for a TDRL re-evaluation as required by regulation.
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 amendment of the ABCMRs decision in Docket Number AR20140010664, dated 23 July 2014. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
* issuing orders retiring him on 17 October 2010 by reason of temporary physical disability and placing him on the TDRL on 18 October 2010 with a combined rating of 60%
* voiding his current DD Form 214
* issuing him a new DD Form 214 that reflects his medical retirement under the appropriate authority and with the appropriate codes
* paying him all back retired pay due as a result of this correction taking into consideration the possibility of a financial VA offset
* having the USAPDA contact the applicant and schedule him for a TDRL re-evaluation
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 placement on the PDRL.
_______ _ _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.
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