IN THE CASE OF:  	  

		BOARD DATE:  30 July 2015	  

		DOCKET NUMBER:  AR20150005175 


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 correction of his record to show he was retired for permanent disability.

2.  The applicant states:

     a.  He was falsely separated under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 (Other Designated Physical or Mental Conditions).  AR 635-200 states that if post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and/or other comorbid mental illnesses are significant contributing factors to a mental health diagnosis, the Soldier will not be processed for separation, but will be evaluated by the physical disability system. 

    b.  He was not granted a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB), nor was he placed on the Temporary Disability Retirement List.  He deployed to Iraq twice.  He also had over 24 months of service and met the criteria for an MEB based on PTSD. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* separation paper work
* DA Form 3822-R (Report of Mental Evaluation)
* Final Pay Worksheet 

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 5 May 2004, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 11B (Infantryman).  His record shows he served in Iraq from 9 January 2005 to         29 December 2005 and from 27 March 2007 through 15 June 2007.  

3.  He was counseled on the following occasions:

* 16 October 2007, for wearing the incorrect rank
* 17 October 2007, for failing to report to formation
* 5 November 2007, for being disrespectful toward a noncommissioned officer
* 9 November 2007, for failure to report to his appointed place of duty
* 16 November 2007 and 5 December 2007, for failure to report
* 11 December 2007, for failure to notify his chain of command of his location

4.  On 19 November 2007, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of military Justice, for failing to report to formation.

5.  On 26 November 2007, he underwent a mental status evaluation.  The examining psychiatrist stated that he had been receiving psychological services.  She diagnosed him with PTSD.  She stated:

* he could benefit from continued therapy and had follow-up appointments and points of contact at the facility  
* he was not presented as suicidal or homicidal at that time
* no mental health problems were seen which required disposition through medical channels
* his psychiatric condition did not amount to a disability but would significantly interfere with his assignment to or performance of duties 
* it was unlikely that efforts to rehabilitate or develop him into a satisfactory member of the military would be successful
* she recommended he be discharged under Army Regulation 635-200, paragraph 5-17  

6.  The examining psychiatrist did not find that he failed to meet retention standards and did not recommend that he be referred to a PEB.  

7.  On 11 December 2007, the applicant's commander informed him that he was initiating action to separate him under the provisions of Army Regulation 635-200, paragraph 5-17.  The commander stated the reason for the proposed action was that he was diagnosed as having PTSD and that it was unlikely that he would be able to be rehabilitated into a satisfactory member of the military.  His battery commander advised him of his rights. 

8.  On 15 January 2008, he consulted with counsel who advised him of the basis for his contemplated separation and its effects, of the rights available to him, and of his option to waive his rights.  After consulting with counsel he elected not to submit statements in his own behalf.  

9.  On 18 January 2008, an authorized official approved the recommendation and directed the applicant's service be characterized as honorable.  

10.  On 8 February 2008, he was honorably discharged in accordance with the authorized official’s decision.  He completed 3 years, 9 months, and 4 days of net active service.  

11.  His VA rating decision dated 18 September 2012 shows he was granted a 70 percent service-connected disability rating for PTSD.  

12.  An advisory opinion was obtained from the Behavioral Health Division of the Office of the Surgeon General (OTSG) in the processing of this case.  The advisory official stated:  

	a.  The applicant enlisted in the Regular Army as an 11B and served a total of 3 years and 5 months.  He was deployed to Iraq from 9 January 2005 to 29 December 2005 and from 27 March 2007 to 15 June 2007.  He reported exposure to traumatic events while deployed and subsequent symptoms consistent with PTSD.  He received treatment at behavioral health at Martin Army Community Hospital from 3 October 2007 to 18 January 2008.  On 27 November 2007, he was diagnosed with PTSD and administratively separated under the provisions of AR 635-200, paragraph 5-17.                               

	b.  He submitted an application for correction of military records to the ABCMR requesting the narrative reason for separation on his DD Form 214 be changed to reflect medical retirement by reason of permanent disability for PTSD with a physical disability rating of at least 70 percent. 

	c.  He asserts he was diagnosed with combat-related PTSD by the VA.  He affirmed he was subsequently awarded service-connected disability of 70 percent for PTSD.

     d.  The review of military records indicated there was sufficient evidence to conclude that he qualified for a PTSD diagnosis and warranted referral into the Integrated Disability Evaluation System at the time of discharge.                    

13.  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.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation or retirement by reason of disability requires processing through the PDES.

14.  Army Regulation 635-40, chapter 4, contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

15.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement.  

	a.  Paragraph 3-32 states mood disorders may be cause for referral to an MEB if there is persistence or recurrence of one or more of the following symptoms: 

* sufficient to require extended or recurrent hospitalization
* necessitating limitations of duty or duty in protected environment
* resulting in interference with effective military performance

	b.  Paragraph 3-36 states situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record partially supports the applicant's request for correction of his record to show he was retired for permanent disability.  

2.  The evidence of record shows he underwent a mental evaluation while on active duty and was diagnosed with PTSD, a condition that may be cause for referral to an MEB if it results in interference with effective military performance.  

3.  The examining psychiatrist stated that his PTSD would significantly interfere with the performance of his duties.  Based on that diagnosis and the advisory opinion from OTSG, it appears that he should have been referred to the PDES to determine his fitness for continued service.  In light of the available evidence, he should now be afforded the opportunity to be processed through the PDES for a determination of fitness.  

4.  The applicant requests that he be medically retired.  To do so would be premature.  If warranted based on MEB/PEB findings, the proper authority will direct such action be taken.

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 a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by the OTSG contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of appropriate invitational travel orders.

	a.  In the event that a formal PEB becomes necessary during the DES process, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.

   b.  Should a determination be made that the applicant should have been separated under the DES, these proceedings will serve as the authority to:
   
* void his administrative separation
* issue him the appropriate separation retroactive to his original separation date
* pay him all back retired/severance pay, less any entitlements already received

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 retiring him for permanent disability.




      __________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)                                         AR20150005175



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ABCMR Record of Proceedings (cont)                                         AR20150005175



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