IN THE CASE OF:	  

		BOARD DATE:	  22 September 2015

		DOCKET NUMBER:  AR20150003337 


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 records to show he was not found unfit and not placed on the temporary disability retired list (TDRL) and/or permanently retired.  He also requests a personal hearing.

2.  The applicant states he is not disabled.  His mental trauma was initiated and aggravated because he became deeply depressed and hopelessly concerned for his family's sake for 2 reasons: 

* he was a victim of a major scam at the time, where through his own fault, he was cheated out of $42,000 ($30,000 borrowed and already $15,000 in debt)
* he made confessions to his chain of command about certain violations he committed during his active duty service

3.  He adds that he was trying to do the right thing and take responsibility for his actions but started shutting down in the midst of a process which resulted in his diagnosis of hallucinations.  He blocked everyone out and stopped eating regularly or socializing.  He knew he was trying to do the right thing but thoughts of who would provide for his family overwhelmed him.  

4.  The applicant provides:

* Two credit union check stubs
* Multiple letters from Capital Consortium Group (CCG) 
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letters and Claim Form (Receiver, Three Hebrew Boys)
* Medical record
* Removal from the TDRL memorandum
* Permanent retirement orders
* TDRL DA Form 199 (Physical Evaluation Board (PEB)) Proceedings)
* Orders placing him on the TDRL
* Psychiatric evaluation report

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a warrant officer of the Army and entered active duty on 8 May 2003.  He held military occupational specialty (MOS) 922A (Food Service Technician). 

2.  He served in a variety of stateside or overseas assignments, including Afghanistan from May 2005 to May 2006 and Iraq from June 2007 to June 2008, and he attained the rank of chief warrant officer three (CW3). 

3.  In March 2008, he was medically evacuated from Iraq for a possible delusional disorder.  His psychiatric report, dated 3 March 2008, shows: 

* he was evaluated in Iraq on 27 February and 3 and 11 March 2008 after presenting himself for care and wanting advice on how to deal with bad things in life and needing to repent to get forgiveness
* he indicated that he recently turned in to his command a list of things he did over the years for which he believed he should be punished 
* his command was concerned that he appeared hyper religious; he had admitted to hearing voices inside and outside of his head
* upon arrival in the States, he was vague in terms of the duration of his depressive symptoms; he had feelings that he should be dead but did not have suicidal ideation 
* he told a story of involvement in “occult” things and how he was involved in pornography but gave his life to God
* he related that in 1999 he began hearing God talk to him and that he also heard evil voices talking to him
* he also related an incident when his compass and alarm clock were illuminated more brightly and felt an angel came by and did that 
* he further related seeing a spot on the ceiling, jumping around, and hearing voices telling him "get a lawyer" and "you blew it"
* he would get angry and irritated if his beliefs were questioned and related that he was struck with misery; he felt electricity flowing though him
* he related being concerned about his wife after both were in credit card debt of about $48,000
* he was diagnosed with schizoaffective disorder; underlying schizophrenia or major depressive disorder with psychotic features were ruled out

4.  His Narrative Summary, dictated on 10 April 2009, shows: 

* in 1992, he was psychiatrically hospitalized for 10 days during training for a suicide attempt
* in 1999, he reported onset of auditory hallucinations associated with religiosity and delusions of guilt
* in 2007/2008, during deployment to Iraq, his symptoms of psychosis became unmanageable, preoccupying, and causing severe functional deterioration
* back in the States, after evacuation, he felt the need to interrupt the rear detachment to walk and pray for his mental relief
* schizoaffective disorder appeared to be the most consistent with his constellation of symptoms 
* he had persistent delusional ideation, auditory hallucinations, and conviction that demon spirits are trying to influence him
* his mental health disturbances existed prior to service (EPTS) and were aggravated by combat conditions
* from a psychiatric vantage point, he did not meet retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and is referred to a PEB

5.  On 15 July 2009, a medical evaluation board (MEB) convened, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed as having the medically-unacceptable condition of schizoaffective disorder.  The MEB recommended his referral to a PEB.  He agreed with the MEB's findings and recommendation and indicated that he did not desire to continue on active duty.  The MEB's findings and recommendation were approved.  

6.  On 3 August 2009, an informal PEB convened and found the applicant's condition prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit due to schizoaffective disorder, EPTS.  He was rated under the VA Schedule for Rating Disabilities (VASRD) at 70 percent disability rating percentage.  The PEB recommended the applicant's placement on the TDRL with future reexamination. The applicant concurred with the PEB's findings and recommendation and waived his right to a formal hearing.

7.  On 10 November 2009, Headquarters, U.S. Army Garrison, Fort Bragg, NC, published official orders retiring him effective 29 January 2010 and placing him on the TDRL effective 30 January 2010 by reason of temporary disability.

8.  He was retired on 29 January 2010 and placed on the TDRL on 30 January 2010.  His DD Form 214 shows he was honorably retired in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2), by reason of temporary physical disability.  It further shows he completed 6 years, 8 months, and 22 days of creditable active service, and he had 11 years, 6 months and 9 days of prior active service.

9.  On 17 February 2012, subsequent to a TDRL examination, an informal TDRL PEB convened.  Based on the review of the TDRL examination, the PEB found he remained unfit to reasonably perform the duties required of his previous grade and military specialty.  However, his current condition was considered sufficiently stable for final adjudication.  He was rated under the VASRD and granted a 30 percent disability rating percentage.  The PEB recommended his permanent retirement.  The applicant concurred with the TDRL PEB's findings and recommendation.

10.  The U.S. Army Physical Disability Agency published orders removing him from the TDRL effective 17 September 2012 and permanently placed him on the retired list in his retired rank of CW3 with a 30 percent disability. 

11.  He provides two credit union check stubs, multiple letters from Capital Consortium Group (CCG), and letters and Claim Form (Receiver, Three Hebrew Boys).  These documents show he contributed money to a company called CCG and that the owners of this company were convicted of conspiracy, mail fraud, and money laundering.  Receiver, Three Hebrew Boys, offered to help him with his claim to recoup his money. 

12.  Army Regulation 635-40 establishes the Army physical disability evaluation system (PDES).  Chapter 7 outlines procedures for administration and processing of Soldiers whose names are on the TDRL:

   a.  Paragraph 7-2 provides that an individual may be placed on the TDRL (for the maximum period of 5 years which is allowed by Title 10, U.S. Code, section 1210) when it is determined that the individual’s physical disability is not stable and he or she may recover and be fit for duty, or the individual’s disability is not stable and the degree of severity may change within the next 5 years so as to change the disability rating.
 
	b.  Paragraph 7-7 states medical examiners and adjudicative bodies will carefully evaluate each case and will recommend removal of the Soldier’s name from the TDRL as soon as the Soldier’s condition permits.  Placement on the TDRL confers no inherent right to remain for the entire 5-year period allowed under Title 10, U.S. Code, section 1210.

	c.  Paragraph 7-11 outlines the action following periodic PEB evaluation.  A Soldier will be removed from the TDRL as described below on the fifth anniversary of the date the Soldier’s name was placed on the list, or sooner on the approved recommendation of a PEB.

		(1)  Permanent retirement.  If the Soldier meets the following criteria, the Soldier will be removed from the TDRL, permanently retired for physical disability, and entitled to receive disability retired pay: (a) the Soldier is unfit; (b) the disability causing the Soldier’s name to be placed on the TDRL has become permanent; and (c) the disability is rated at 30 percent or more under the VASRD, or the Soldier has at least 20 years of active Federal service.

		(2)  Separation.  A Soldier will be removed from the TDRL and separated with severance pay if the Soldier (a) has less than 20 years of service; (b) is unfit because of the disability for which the Soldier was placed on the TDRL; and either the disability has stabilized at less than 30 percent; or the disability, although not stabilized, has improved so as to be ratable at less than 30 percent. A former Regular Army enlisted Soldier who would be separated under this authority may request a waiver to reenlist.

		(3)  Fit for duty. If a Soldier is determined physically fit to perform the duties of their office, grade, rank or rating (and is otherwise administratively qualified), former Regular Army enlisted Soldiers, subject to their consent, will be reenlisted in their regular component in the grade held on the day before the date place on the TDRL, or in the next higher grade.  If the Soldier does not consent to reenlistment, TDRL status and disability pay will be ended as soon as possible.

		(4)  Unfit, Not in Line of Duty:  A Soldier may recover from the disability resulting in placement on the TDRL.  If while on the TDRL, the Soldier incurs another unfitting disability, the Soldier may be separated without benefits.  If the Regular Army Soldier had completed 20 years or more of active service when placed on the TDRL, the Soldier may request voluntary retirement.

13.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record.  It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was diagnosed with a preexisting mental health condition, schizoaffective disorder, that was aggravated by service and rendered him unfit for retention.  His records were considered by an MEB that referred him to a PEB.  The PEB rated him at 70 percent disabled and recommended his placement on the TDRL by reason of temporary disability with a tentative reexamination date.  He concurred and retired in January 2010.

2.  He underwent a TDRL examination and was subsequently considered by a TDRL PEB that found he remained unfit to reasonably perform the duties required of his previous grade and military specialty.  However, his condition at that time was considered sufficiently stable for final adjudication.  He was rated at a 30-percent disability rating percentage.  The PEB recommended his permanent retirement.  The applicant concurred with the TDRL PEB's findings and recommendation.

3.  While it is reasonable to believe that his financial debt contributed to his stressors, those stressors were not the primary reason for his disability.  According to his physician, he had persistent delusional ideation, auditory hallucinations, and a conviction that demon spirits were trying to influence him.  A competent medical authority determined that schizoaffective disorder appeared to be the most consistent with hs constellation of symptoms.  The fact that he does not now feel disabled does not invalidate the findings of disability in 2009 and in 2012.  

4.  The PEB is tasked to assess the degree of disability at the time of discharge.  The PEB did so and rated his mental health condition disabling in 2009 and in 2012.  His disability evaluation was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEBs.  There does not appear to be an error or an injustice in his case.

5.  Aside from his unsubstantiated argument that he is no longer disabled, he has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case. 

6.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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)                                         AR20150003337



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ABCMR Record of Proceedings (cont)                                         AR20150003337



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