IN THE CASE OF:  	  

		BOARD DATE:  6 October 2015	  

		DOCKET NUMBER:  AR20150001589


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 his military records by showing he was retired due to physical disability.

2.  The applicant states he served on active duty in the U.S. Army for 12 years, attained the rank of staff sergeant (SSG), pay grade E-6, and was promotable.  He served three tours of duty in Iraq and was exposed to the burn pits where he inhaled trash and fecal matter particles.  He experienced multiple improvised explosive devices, mortars, and land mine explosions.  He suffered multiple concussions and blackouts during these deployments.  

   a.  He was diagnosed with having post-blast brain syndrome, post-concussion syndrome, and traumatic brain injury (TBI).  He also suffers from memory lapses and memory loss.  His wife has to help him remember many things.  He gets constant headaches and has to take four different medications just to manage the pain.  
   
   b.  He was diagnosed with severe post-traumatic stress disorder (PTSD), adjustment disorder, anxiety, and depression.  He also suffers from primary hypersomnia with sleep disturbances and night terrors.  Without the aid of medications, he would not be able to sleep.  
   
   c.  He suffers from severe obstructive sleep apnea and wears a continuous positive airway pressure (CPAP) therapy machine every night.  He has lumbago and constant back pain.  He suffers from tinnitus and has two hearing aids to treat the ringing in his ears.  Because of his many medical conditions he believes he should be considered by a medical evaluation board (MEB).  His primary care manager (PCM) referred him to the MEB but he was not given the opportunity to be evaluated while on active duty because his time ran out.  He was chaptered out with an honorable characterization of service before he could be seen by the MEB.

3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a one-page letter, dated 16 January 2015
* service medical records (5 sets containing an estimated 225 pages each)

CONSIDERATION OF EVIDENCE:

1.  On 3 June 2002, the applicant enlisted in the Regular Army.  He was trained as a horizontal construction operator.  He attained the rank of SSG, pay 
grade E-6 on 1 December 2010.

2.  Records show he served in Iraq during the following periods:

* 6 February to 3 July 2003
* 21 October 2005 to 20 October 2006
* 8 June 2008 to 4 September 2009

3.  On 3 November 2014, the applicant was notified, via memorandum, that action was being initiated to separate him from the military under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 9, due to alcohol or drug abuse rehabilitation failure.  The commander recommended he receive an honorable characterization of service.  He was informed of his legal rights to include the right to request an administrative separation hearing by a board and given 7 duty days in which to acknowledge this action.  His acknowledgment is not available for review.

4.  On 12 November 2014, the applicant’s commander requested the applicant be separated from the military as stated in the preceding paragraph.  The commander further stated that the applicant was enrolled in the Army Substance Abuse Program on 29 August 2013.  He attended inpatient treatment from 9 September through 8 October 2013 with a 1-year mandatory follow-up out-patient treatment requirement.  Within 1 year, he was again enrolled in inpatient treatment from 30 July to 5 October 2014.  He also was involved in two serious incidents of drug-related misconduct within a 12-month period.

5.  On 12 November 2014, the appropriate authority directed the applicant’s discharge from active duty with an honorable characterization of service.

6.  On 3 January 2015, the applicant was honorably discharged from active duty due to alcohol rehabilitation failure.  He completed 12 years, 7 months, and 1 day of creditable active duty service.

7.  In the processing of this case, an advisory opinion was obtained from the Medical Board Physician Supervisor, Madigan Army Medical Center, Tacoma, Washington, dated 2 April 2015, which was forwarded to the Board from the Office of the Surgeon General (OTSG).  The opinion provides the following review of the applicant’s medical and behavioral health issues:

	a.  On 18 November 2014, the applicant was evaluated by the audiology clinic at Fort Leonard Wood Army Hospital for subjective tinnitus.  Otoscopic inspection, tympanometry, and acoustic reflexes were normal.  Audiograms met criteria for an H1 hearing profile in accordance with (IAW) AR 40-501 (Standards of Medical Fitness), table 7-1.  Word recognition testing was 100 percent correct in the right ear and 96 percent correct in the left ear.  Tinnitus handicap inventory score was 48.  Passing the speech recognition test with the H1 hearing levels meets the Army retention standards IAW AR 40-501, chapter 3-10.

	b.  The applicant was evaluated in 2007 for low back pain, diagnosed as "lumbago."  A lumbar spine X-ray on 21 February 2007 was negative for fractures.  He received a weekly course of physical therapy treatment from February to March 2007.  On 20 March 2007, a physical therapist noted:  "Back pain has resolved now, with just the sacroiliac joint problem.  Will have patient come to PT [physical therapy] for mobilization and exercises to loosen joint problem."  A review of his record shows that over the past 7 years, there were no complaints of back pain or requirements for physical therapy documented in the applicant’s Armed Forces Health Longitudinal Technology Application (AHLTA) health record.  During the applicant’s inpatient stay at Eisenhower Army Medical Center for alcohol/substance abuse treatment, a lumbar spine X-ray was taken on 17 September 2013 without a corresponding AHLTA note.  There were no duty-limiting profiles for low back pain documented in e-Profile during the past 5 years since e-Profile was initiated.  The applicant was able to deploy and perform his military duties without significant physical limitations, thus it appears he met the Army retention standards IAW AR 40-501, chapter 3-39h for "lumbago."

	c.  Following episodes of falling asleep while driving, the applicant was evaluated for sleep apnea.  On 17 October 2013, a polysomnogram demonstrated mild obstructive sleep apnea with an average apnea/hypopnea index of 12.  He was fitted with a CPAP machine which reduced his "AHI [apena hypopnea index] to a negligible level, and reduced his Epworth Sleepiness Score from 19/24 (pre-treatment) to 3/24 (post-treatment) per the Internal Medicine consultation report dated 27 January 2014."  Per Central Command’s deployment guidance as defined in Modification 12 of the Personnel Policy Guidance, TAB A, Soldiers with mild sleep apnea (AHI less than 15) may deploy with or without CPAP.  No waiver is required to deploy.  It was concluded that the applicant’s mild sleep apnea that corrects to a normal AHI and Epworth Score with CPAP meets Army retention standards IAW AR 40-501, chapter 3-41c.

	d.  Concerning the applicant’s claim of TBI with residual headaches, he reported that he had insomnia and headaches in 2008 that he alleges were related to a mortar shell explosion in 2006 in Iraq.  

        (1)  A 9 September 2009 post-deployment questionnaire stated he had been on sick call during deployment for bad headaches.  The question "Are you still bothered by bad headaches?" was answered "No."  
   
        (2)  On 1 September 2013, there is a command-directed emergency psychiatric evaluation for "huffing" (substance abuse) of 4 months duration.  He was admitted to the hospital for observation.  On 26 September 2013, he had an evaluation by the TBI clinic at Eisenhower Army Medical Center.  He reported headaches at a pain level of 6/10, which improved to 3/10 with Maxalt medication.  He reported being on amphetamines since 2009 to help him stay awake.  He denied having generalized pain or sinus pain.  His neurologic examination was normal.  His memory was unimpaired.  A magnetic resonance image (MRI) of his brain was normal.  He was diagnosed with a concussion with loss of consciousness less than 30 minutes.  The medical notes state "if a TBI occurred, it was mild rather than moderate."  He was treated with Naprosyn twice a day as needed and Maxalt twice a week as needed. 
   
        (3)  On 13 November 2013, he had a neurologist evaluation for TBI.  Again, his neurologic examination was normal.  He was diagnosed with having post-concussion syndrome with recurrent headaches.  The applicant was treated with Topamax medication and released without limitations.  
   
        (4)  On 15 May 2014, he had a clinic appointment for medication refills. "Patient states that he has not noticed any bad side effects from medications.  Patient states that the meds work well.  General overall health is very good.  Headache pain severity 0/10."
   
        (5)  On 14 August 2014, the applicant was again admitted to the hospital for huffing/inhalant abuse, at which time he reported daily headaches.  
        (6)  On 21 October 2014, he visited the clinic to see his PCM for the purpose of receiving a physical diagnosis for an MEB.  A nurse practitioner wrote a temporary profile for TBI to assist the applicant with his request for an MEB.  
   
        (7)  The medical reviewer concluded the applicant’s headaches met retention standards IAW AR 40-501, chapter 3-30g due to the lack of any significant impact on his duty performance and lack of incapacitating attacks over the previous 9 years in which he had continued to perform his military duties.

	e.  Concerning behavioral health issues, the applicant and his wife presented themselves to the Social Care Management Clinic at Fort Polk on 7 February 2007.  The care manager’s diagnosis was PTSD, adjustment disorder with disturbance of emotions and conduct, and depression.  The applicant attended psychoeducational group sessions over the ensuing months and was cleared for deployment to the combat zone in 2008.  

        (1) On 10 March 2010, the applicant was evaluated by a licensed clinical social worker (LCSW) for difficulty sleeping and diagnosed with having a "Phase of Life Problem."  He underwent several counseling sessions with social workers for suspected depression.  He was diagnosed by a psychiatric nurse practitioner as having an adjustment disorder with anxiety.  He was treated with Concerta (methylphenidate, a stimulant) for mood and to stay awake during the day.  He was treated with triazolam (minor tranquilizer) to assist with sleep, which apparently seemed to help for several years until July 2013, when he fell asleep while driving his car.  
   
        (2)  On 1 September 2013, it was discovered he had been huffing inhalants for the previous 4 months, including possibly while driving his vehicle.  A subsequent polysomnogram also showed untreated sleep apnea, which also likely contributed to both the insomnia and drowsiness symptoms.  For the next year most of his behavioral health care consisted of substance abuse counseling. 
   
        (3)  On 22 July 2014, the applicant was brought in to the emergency room, semiconscious after huffing on a can of spray paint.  He was placed in inpatient/residential treatment for drug abuse.  At this time his unit began administrative separation proceedings for drug/alcohol rehabilitation failure.  
   
        (4)  On 20 October 2014, a family nurse practitioner diagnosed him with having an adjustment disorder with anxiety and wrote a temporary psychiatric (S) S3 profile and requested an MEB for anxiety and depression with continued substance abuse.  The next day the applicant asked that the temporary profile be changed to something other than a behavioral health condition.  The nurse changed it to a level 3 temporary profile for TBI.  
        (5)  On 22 October 2014, a licensed practical nurse (LPN) in the MEB clinic performed a preliminary medical retention decision point (MRDP) review.  (Per AR 40-501, chapter 7-4b, an LPN is not authorized to perform MRDP reviews.)  However, the LPN on behalf of the applicant made subsequent appointments with other providers for further evaluation of the medical requirement for an MEB.  
   
        (6)  On 28 October 2014, the applicant failed to show for his scheduled behavioral health evaluation appointment, presumably for the MEB.  Instead, he was brought into the emergency room following a motor vehicle accident after huffing several cans of compressed air/dust cleaner and behaving inappropriately at the scene of the accident.  The applicant admitted to the paramedics that he had been huffing while driving.  He told the emergency room physician that he was not huffing.  He was given a temporary profile for inhalant dependence (with apparent use while driving) with restrictions for no weapons and no deployment.  It was further noted that the applicant had an apparent treatment refractory substance abuse disorder and had demonstrated a proclivity to become intoxicated in his car, possibly while driving.  
   
        (7)  On 7 November 2014, a psychiatric review of his behavioral health systems found he was unlikely to have depressive syndrome or anxiety syndrome.  The LCSW, who also held a doctorate, stated PTSD was possible and alcohol dependence was probable.  The applicant was diagnosed with having acute anxiety concerning his pending discharge from the military.  
   
        (8)  On 13 November 2014, a neurologist diagnosed him with having chronic tension-type headaches with a prior history of concussions and chronic depression.  The applicant was released without any duty limitations or a profile.  
   
        (9)  On 14 November 2014, a psychiatrist diagnosed the applicant with having an inhalant dependence.  At this point he was not having severe nightmares and his depression was much better.  The psychiatrist noted, "No certainty about whether his anxiety and depressive symptoms were due to substance abuse or were primary."  
   
        (10)  On 24 November 2014, the psychiatrist noted the applicant was remarkably improved.  He was cheerful and smiling with no psychomotor retardation and no evidence of substance abuse.  His wife verified the improvement and that he was not using any substances.  No relapse was expected.  The applicant was released without duty limitations.  
   
        (11)  On 24 November 2014, a neuropsychologist noted in AHLTA that the applicant’s mental status was normal, motor and sensory functions were normal, and his affect was pleasant.  His recent memory and remote memory were normal.  Current headaches and pain were not noted.  
   
        (12)  On 3 December 2014, the applicant had a mental status examination for the purpose of the proposed separation action which was normal.  There was no evidence of a current psychiatric diagnosis.  The applicant’s behavioral health condition appeared to have improved when he stopped abusing substances and/or alcohol in November 2014.  The examiner noted the applicant’s behavioral health condition met Army retention standards IAW AR 40-501, paragraph 3-32a, b, c; paragraph 3-33a, b, c; and paragraphs 3-34.  His substance abuse, however, did result in interference with effective military performance and did require recurrent emergency room visits or extended hospitalization for inpatient rehabilitation.

	f.  The opining official stated the delay in diagnosis of sleep apnea following the applicant’s symptoms of insomnia/nighttime awakening, daytime drowsiness, fatigue, problems with memory/concentration and headaches likely led to alternate diagnoses (phase of life problem, anxiety, depression, adjustment disorder, PTSD, post-concussion tension headaches) and various treatments were prescribed (methylphenidate, dextroamphetamine, triazolam, alprazolam and antidepressants, etc.).  It is noted huffing also causes damaging health consequences such as depression, inattentiveness, irritability, belligerence, apathy and impaired judgment.  Any underlying behavioral health conditions may have been exacerbated by the untreated sleep apnea and by the inhalant abuse. Once his sleep apnea was treated and his inhalant abuse stopped, his behavioral health and their associated medical symptoms improved.  Therefore, the behavioral health conditions noted above did not appear to reach the threshold for an MEB.  

8.  On 8 April 2015, a copy of the advisory opinion was sent to the applicant for his information and an opportunity to respond.  No response was received.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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.

	a.  It provides for MEB's, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of AR 40-501.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral to a PEB.
	b.  It states the narrative summary (NARSUM) to the MEB is the heart of the disability evaluation system.  In describing a Soldier's conditions, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service.  Soldiers who have been evaluated by an MEB will be given the opportunity to read and sign the MEB proceedings.  If the Soldier does not agree with any item in the medical board report or the NARSUM, he or she will be advised of appeal procedures.

	c.  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.

	d.  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.

10.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling.  It further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 contains the authority and outlines the procedures for discharging Soldiers because of alcohol or drug abuse rehabilitation failure.  A member who has been referred to the Army Drug and Alcohol Prevention and Control Program (ADAPCP) for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military records should be corrected by showing he was retired due to physical disability because he was exposed in Iraq to burn pits and he inhaled smoke that contained trash and fecal matter particles.  He also suffered from exposure to multiple improvised explosive devices, mortars, and land mine explosions resulting in multiple concussions and blackouts during his three tours in Iraq.

2.  In the course of processing this case, an in-depth review of the applicant’s complete service medical records was completed by the OTSG.  After a thorough review by appropriate medical staff, it was determined that none of the applicant’s conditions he noted in his application failed to meet the Army’s medical fitness standards.

3.  The evidence of record shows that the applicant was honorably discharged as a result of failing rehabilitation for his substance abuse.  His separation was not due to a physical disability that made him unfit for further duty.

4.  Because the applicant's various physical conditions met retention standards at the time of his discharge there was no basis for a referral to the MEB.  Thus there is not requirement to refer him to an MEB at this time.  As there were no conditions at the time of his separation that warranted referral to the PDES, there is no justification for either a medical retirement or disability separation from active duty.

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

6.  After a careful and thorough review of his medical and personnel service records, there does not appear to be an error or an injustice in his case.  The applicant's contention that he should have been evaluated by a medical board is not supported by the available medical evidence.  

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)                                         AR20150002162



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ABCMR Record of Proceedings (cont)                                         AR20150001589



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