IN THE CASE OF:	  

		BOARD DATE:	  11 August 2015

		DOCKET NUMBER:  AR20150003539


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 her records to show she was medically retired and placed on the Permanent Disability Retired List (PDRL) due to post-traumatic stress disorder (PTSD).

2.  The applicant states:

	a.  She wishes to undergo a duty-related medical evaluation board (MEB) due to PTSD.

	b.  Her discharge from the U.S. Army Reserve (USAR) for expiration of required service should be changed to transfer to the PDRL.

	c.  She should have received a line-of-duty (LOD) determination for PTSD diagnosis and undergone the MEB process.

	d.  On 26 September 2008, she was voluntarily transferred to the USAR Individual Ready Reserve (IRR) due to completion of her contractual obligation.

	e.  On 5 January 2009, she requested a transfer from the IRR to a troop program unit (TPU).  The request was disapproved due to her PULHES (physical condition, upper extremities, lower extremities, hearing, eyes, and psychiatric) rating.

	f.  She was never considered by an MEB for her PTSD; instead, she was referred to a military occupational specialty (MOS) medical retention board (MMRB) which she believes was a mistake; as a result, she was discharged from the USAR on 31 August 2010.

	g.  She was diagnosed with PTSD but was discharged at the completion of her required active service without an MEB.  Although she received treatment and medication, it did little to correct her medical issues.

3.  The applicant provides:

* DD Form 214
* Permanent Order 104-059 for award of the Combat Action Badge
* DA Form 3349 (Physical Profile)
* Orders 08-240-00002 for expiration of Army National Guard or USAR service obligation
* Department of Veterans Affairs (VA) Rating Decision
* medical documents

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 29 August 2002, the applicant enlisted in the USAR.  After her initial training, she was awarded MOS 88M (Motor Transport Operator).

3.  On 7 December 2005, she was ordered to active duty in support of Operation Iraqi Freedom effective 19 January 2006.

4.  Her DD Form 214 shows she was honorably released from active duty on 8 April 2007 by reason of "Completion of Required Active Service" with a separation code of "LBK."  She completed 1 year, 2 months, and 20 days of active duty service.

5.  There are no available records indicating behavioral health issues prior to her release from active duty on 8 April 2007.

6.  Her VA medical records show she received treatment for PTSD and anxiety on 3 August 2007.

7.  On 24 August 2007, she was evaluated by the Mental Health Clinic and received a physical profile rating of 3 in the psychiatric factor for PTSD.  The block was marked indicating she needed an MMRB; it did not indicate she needed an MEB/physical evaluation board (PEB).  The DA Form 3349 does not have an approving signature.

8.  On 26 September 2008, she was honorably released from her USAR TPU at the expiration of her term of service and transferred to the USAR Control Group (Annual Training).

9.  There is no available evidence that an LOD determination was made related to PTSD.

10.  On 24 February 2009, a VA Compensation and Pension Examination noted moderate to severe PTSD caused by military combat trauma and depression and cited multiple combat stressors during her duty in Iraq.

11.  On 31 August 2010, she was honorably discharged from the IRR under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations) due to termination of her service obligation.

12.  Effective 1 July 2013, the VA increased her disability rating for PTSD to 100 percent due to PTSD and anxiety.

13.  During the processing of this case, an advisory opinion was obtained from the Brooke Army Medical Center, Fort Sam Houston, TX, dated 11 June 2015.  The advisory official recommended approval of the applicant's contention that an MEB would have been appropriate for the applicant's conditions prior to her separation from the USAR on 31 August 2010; therefore, an MEB recommendation would have been appropriate with a rating of 50 percent for PTSD and depression at that time.

14.  On 12 June 2015, the applicant was provided with a copy of the advisory opinion from the Brooke Army Medical Center for review and the opportunity to submit comments or rebuttal.  The applicant did not provide a response to this advisory opinion.

15.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Army Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	a.  The objectives of the system are to:

* maintain an effective and fit military organization with maximum use of available manpower
* provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability
* provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected

	b.  Soldiers are referred to the PDES when they:

* no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB
* receive a permanent medical profile rating of 3 or 4 and are referred by an MMRB
* are command-referred for a fitness-for-duty medical examination
* are referred by the Commander, HRC

	c.  The PDES assessment process involves two distinct stages:  the MEB and PEB.  The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service.  A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees.

	d.  The mere presence of medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

16.  Army Regulation 635-40 establishes the Army 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.

17.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Chapter 3 lists the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals in paragraph 3-2.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier’s performance of his or her duties or may compromise or aggravate the Soldier’s health or well-being if he or she were to remain in the military service.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veterans Affairs Schedule for Rating Disabilities (VASRD).  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

18.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent.

19.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation.

20.  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 VA rating does not establish an error or injustice on the part of the Army.  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.  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.  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.

21.  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 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 nosologic classification scheme.  Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.  From a 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."

22.  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.

23.  The fifth edition of the DSM 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 criterion 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; or

		(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; or

		(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 or

		(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); and

		(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, and

		(6)  sleep disturbance.

	f.  Criterion F – Duration:  Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 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 use, or other illness.

DISCUSSION AND CONCLUSIONS:

1.  The complete facts and circumstances surrounding the applicant's separation are not available for review with this case.  However, the available evidence shows the applicant enlisted in the USAR on 29 August 2002 and was transferred to the IRR on 26 September 2008 upon her expiration term of service (ETS).  She was honorably discharged from the IRR on 31 August 2010 due to termination of her service obligation.

2.  The evidence of record partially supports the applicant's request for correction of her records to show she was retired by reason of permanent disability.  The available evidence shows she was referred for a mental status evaluation subsequent to exhibiting signs that her immediate commander perceived to have interfered with her ability to perform her duties.  She underwent a mental status evaluation and was diagnosed as having PTSD.

3.  Her VA medical records show she received treatment for PTSD and anxiety in August 2007.  Her medical records show her issues of PTSD were related to her service in Iraq.  Aside from her physical profile, it is unclear whether PTSD significantly limited or interfered with the performance of her duties prior to her ETS.  Due to having been recommended for an MMRB, it would appear that the doctor completing her physical profile believed she could still perform her common military duties but possibly not her MOS-specific duties.  However, it appears an MMRB may never have been accomplished and she was not afforded a medical review process prior to her discharge.  In light of the available evidence, the applicant should now be afforded the opportunity to be processed through the PDES for a determination of fitness.

4.  The VA granted her service-connected disability compensation for PTSD to include anxiety.  However, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.

5.  To medically retire the applicant at this time without a duty-related MEB would be premature.  If warranted based on MEB/PEB findings, the proper authority will direct such action be taken.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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:

	a.  having the Office of the Surgeon General:

* contact the applicant and arrange a physical evaluation
* refer the applicant to an MEB and informal PEB, if appropriate
* issue appropriate invitational travel orders to accomplish the above

	b.  having Office of the Surgeon General issue appropriate invitational travel orders for the applicant to prepare for and participate in consideration of her case by a formal PEB in the event a formal PEB becomes necessary; and

	c.  should a determination be made that the applicant should have been separated under the PDES, showing this ABCMR Record of Proceedings serves 

as the authority to void the applicant's administrative discharge and to retroactively issue her the appropriate disability separation.



      ____________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)                                         AR20120011895



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ABCMR Record of Proceedings (cont)                                         AR20150003539



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