IN THE CASE OF: BOARD DATE: 7 November 2013 DOCKET NUMBER: AR20130005361 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 military records as follows: * award of a disability pension for various medical conditions * promotion to specialist (SPC)/E-4 * entitlement to back pay and allowances 2. The applicant states: * he was diagnosed with psychosis and other medical conditions while in the Army * he was unable to perform his military duties and he was separated without a medical evaluation board (MEB) or physical evaluation board (PEB) * he should have received a disability pension because of the severity of his medical conditions * he also served in combat and because of his service in combat, he should have been promoted to SPC/E-4 3. The applicant provides * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members) * Enlisted Record Brief (ERB) * Chronological Records of Medical Care between February 2009 and July 2011 * 2009 Psychiatric Evaluation * Hospital discharge summary * List of medications * After care plan/instructions * Civilian hospital records and hospital notes COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests correction of the applicant's records to: * change his honorable discharge to a medical disability discharge with a 50% rating and placement on the temporary disability list (TDRL) for 6 months with a subsequent permanent disability retirement at the rate of 70% * restoration of his rank/grade to SPC/E-4 * entitlement to back pay and allowances 2. Counsel states: a. The Army committed an error or an injustice by not referring the applicant to the Army Physical Disability Evaluation System (PDES), by not awarding him a medical disability retirement of at least 70%, and by not applying the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) standards. The decision is not supported by the evidence. b. The Army committed an error or an injustice by improperly reducing the applicant in rank. The decision is not supported by the evidence. 3. Counsel did not provide additional evidence. CONSIDERATION OF EVIDENCE: 1. The applicant's records show he enlisted in the Regular Army in the rank/grade of private (PV1)/E-1 on 6 May 2008 and he held military occupational specialty (MOS) 88M (Motor Transport Operator). He served in Kuwait from 14 August 2009 to 10 March 2010. 2. His exact dates of promotion to private (PV2)/E-2 or higher are unknown. His ERB, dated 7 October 2011, shows he was reduced to PV2/E-2 on 1 July 2009 and to PV1/E-1 on 19 November 2009. His ERB also shows he was flagged (suspension of favorable personnel actions) for Army Physical Fitness Program (APFT) failure on 30 October 2009. 3. There are no orders promoting him to private first class (PFC)/E-3 or SPC/E-4 in his records. Likewise, there are no Article 15s filed in his records. However, his pay records at the Defense Finance and Accounting Service (DFAS) show he was promoted or reduced as follows: * E2 - 20081106 through 20090216 * E1 - 20090217 through 20090630 * E2 - 20090701 through 20091118 * E1 - 20091119 through 20110908 4. He was honorably released from active duty on 8 September 2011 in accordance with chapter 4 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) by reason of completion of his required active service. His DD Form 214 shows in: * Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) - PV1 and E-1 * Item 12i (Effective Date of Pay Grade) - 2009-11-19 5. There is no indication in the applicant's service records that he was: * issued a physical profile of a permanent nature that prevented him from performing the duties required of his former grade or military specialty * diagnosed with an unfitting condition by a competent medical authority * issued a commander's statement describing his duty limitations and/or his illness/injury * suffered and/or was diagnosed with an illness or an injury that rendered him unable to perform the duties required of his former grade or military specialty * found medically unqualified for separation in September 2011 6. His service medical records are not available for review with this case. All records are provided by him or his counsel and include: a. Chronological record of medical care, dated 25 July 2011, which shows he was seen in an outpatient status in the Psychiatry Clinic. He followed up at psychiatry and discussed side effects to medications. He participated in a psychiatric therapy session and was briefed on the risks and benefits of medications. He was released without limitations. b. Chronological record of medical care, dated 19 July 2011, which shows he was seen in an outpatient status at the Psychiatry Clinic. He followed up at psychiatry and discussed side effects to medications. He contended he was experiencing auditory/visual hallucinations, paranoia, insomnia, and anxiety. He denied suicidal ideation and indicated he was compliant with his medications. The doctor indicated he had met with the applicant's chain of command who stated they did not believe he had a true illness and that he was not a good Soldier. He was released without limitations. c. Chronological record of medical care, dated 1 July 2011, which shows he was seen in an outpatient status at the Psychiatry Clinic. He contended he was suffering from anxiety, partly because his chain of command wanted to separate him for misconduct. The doctor explained the medication and their side effects. He also discussed sleep hygiene and the importance of sleep with him. He was released without limitations. d. Chronological record of medical care, also dated 1 July 2011, which shows he was seen in an outpatient status, on a walk-in basis, at the Psychiatry Clinic, in relation to post-hospitalization safety check. He had been hospitalized from 26 April to 17 May 2011 at SMC and then hospitalized from 17 May to 1 July 2011 at Holliswood Hospital, New York, an inpatient treatment alternative for Soldiers/family members having difficulties related to stressful events they experienced pre-deployment, in-theater, or related to post-deployment adjustment. He had admitted to having auditory hallucinations and suicidal thoughts directed toward his unit members and command. He contended he was suffering from anxiety, partly because his chain of command wanted to separate him for misconduct. The doctor explained the medication and their side effects. He participated in a therapy session and was released without limitations. e. Chronological record of medical care, dated 16 May 2011, which shows he contended he was referred to the hospital due to an Adjustment Disorder with disturbance of emotions and conduct. f. Chronological record of medical care, dated 25 April 2011, which shows he was presented at Behavioral Health on a walk in basis and stated his unit was "focused on f-----ng him up and that he was not going back to work and if anyone approaches him he was going to f--k them up." He made numerous indications he was referring to physical violence and stating "he did not care anymore." He was unwavering in his refusal to think about better options than physical. A decision was made to hospitalize him based on threats of serious violence to anyone in his unit. He did not identify a specific plan but ideation and intent to harm others was definitely present. Military police had to be called to convince him to go to the hospital. g. Chronological record of medical care, dated 16 February 2011, which shows he walked in to the Psychology Clinic and was seen on an outpatient basis. He indicated he was led to believe his enlistment was ending in March but was recently told his enlistment would not end until September. He reported frustration with this news and indicated he could not handle this without doing something stupid. He did not appear to be at imminent risk for suicidal or homicidal ideation. However, there was clear occupational stress, alcohol use, and history of fighting. h. Chronological records of medical care, dated 14 and 28 September; 5, 12, 19 October; 2, 9, 16, 23, and 30 November 2010; 7 December 2010; and 4 January 2011, which show he participated in anger management group therapy sessions at the Psychology Clinic. i. Chronological records of medical care, dated 8 September; 13, 20, and 27 October; and 3, 10, and 17 November 2010, which show he attended and participated in Men's Growth group therapy sessions related to various men's concerns. j. Chronological record of medical care, dated 9 November 2010, related to a follow-up visit regarding anger management. k. Chronological record of medical care, dated 28 October 2010, which shows he was referred due to interpersonal conflict and sleep difficulties. l. Chronological record of medical care, dated 26 October 2010, which shows he felt anxiety about "his bills, loss of rank, future with an upcoming chapter, and separation." He complained that his chain of command was out to get him and stated "I just don't like Soldiers and need to get out of here." He felt irritated by all Soldiers and was ready to get out of the military. m. Chronological record of medical care, dated 26 October 2010, which shows he felt anxiety about "his bills, loss of rank, future with an upcoming chapter, and separation." He complained that his chain of command was out to get him and stated "I just don't like Soldiers and need to get out of here." He felt irritated by all Soldiers and was ready to get out of the military. He stated he had received three Article 15s that led to his early departure from theater and potential for a chapter. He stated that while downrange, he got into a physical and verbal altercation with a Soldier and fell asleep behind the wheel and halted the entire convoy by drifting off the road. n. Chronological record of medical care, dated 19 and 20 October 2010, referring him to anger management and Men's Growth group therapy session. o. Chronological record of medical care, dated 18 October 2010, visit to Psychology Clinic. He contended he was depressed and felt isolated. He related he had failed his APFT once and he was also pulled off the road in September. He had received an Article 15 for returning late from block leave and he lost rank. He also indicated he had trouble sleeping. p. Chronological record of medical care, dated 30 August 2010, which shows he walked in to the Psychology Clinic, and shared his high frustration with his chain of command. He stated he was twice demoted in theater. He appeared to have had an Adjustment Disorder. q. Chronological record of medical care, dated 21 May 2010, which shows he was seen at the Psychiatry Clinic in an outpatient basis due to a diagnosis of Sexual Dysfunction, Not Otherwise Specified. He related that he continues to have some difficulty performing sexually. He did not have any other illness or psychiatric symptoms. r. Chronological record of medical care, dated 1 April 2010, which shows he was seen at the Psychiatry Clinic in an outpatient basis in relation to a chapter 14 (misconduct). He was previously seen for an erectile dysfunction but he was otherwise cleared for administrative separation by his chain of command back in March 2010. He denied any safety concerns and expressed his dissatisfaction with the chapter. s. Chronological records of medical care, dated 8 January and 5 February 2009, which show he was seen at the Psychiatry Clinic in an outpatient basis due to a diagnosis of Adjustment Disorder with Anxiety and Depressed Mood and Sexual Dysfunction, Not Otherwise Specified. t. Initial Psychiatric Examination, dated 8 January 2009. He contended that he was having problems performing sexually. His diagnosis was as follows: * Axis I: Adjustment Disorder with Anxiety and Depression; Sexual Dysfunction, Not Otherwise Specified * Axis II: No diagnosis * Axis III: None * Axis IV: Adjustment to joining the Army * Axis V: Global Assessment of Functioning (GAF) Score of 70 to 75 u. Hospital discharge summary, dated 30 June 2011. This document shows the applicant presented as guarded and with paranoid qualities upon admission. He later disclosed that he had been experiencing auditory hallucinations as well as homicidal thoughts directed toward his unit and commander. He was treated with Zoloft and Seroquel which helped mood, post-traumatic stress disorder, and some of his paranoia but did not eliminate hallucinations. However, when these were augmented with the addition of Depakote, the voices remitted. He also, at the time of his hospital discharge, denied any homicidal thoughts. His condition on discharge was improved - No psychosis, suicidal, or homicidal ideation. His mood was stable and there was no dangerous compromise in sight. His diagnosis was * Axis I: Psychosis, Not Otherwise Specified; PTSD * Axis II: Deferred * Axis III: Arthritis, low back pain, asthma * Axis IV: other psychosocial and environmental stressors; moderate, acute * Axis V: GAF Score of 55 v. Psychological admissions evaluation, dated 17 May 2011. This document stated this is the first Holliswood but second overall psychiatric admittance. He presented with depressed and irritable mood, PTSD, possible paranoid perception of his unit's intention towards him; a history of suicidal ideation (no current intent or plan); a history of homicidal ideation toward his unit (was reportedly sent home from Iraq in 2010 after threatening to kill everyone); and past possible hallucinations (none recent). At the time of his admission, he was apparently homicidal toward a peer. w. Treatment plan at Holliswood Hospital, from May through November 2010. x. Progress notes, dated November 2012, from Holliswood Hospital. 7. Army Regulation 600-8-19 (Enlisted promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system and provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support promotions and reductions. Paragraph 10-12 states reduction, except for Article 15, Uniform Code of Military Justice (UCMJ), is announced in orders. 8. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. Paragraph 3-37b states for Soldiers who are at the rank of SPC or corporal (CPL) and below (prior to punishment) the original will be filed locally in unit nonjudicial punishment or unit personnel files. Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier’s transfer to another General Court-Martial Convening Authority, whichever occurs first. 9. Title 10, U.S. Code (USC), 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 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 a medical evaluation board * receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board * 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 the 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 retirement payments and have access to all other benefits afforded to military retirees. d. The mere presence of a 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. 10. 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 office, grade, rank, or rating. Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. 11. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. 12. 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. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 4 of this regulation provides, in pertinent part, that a Soldier will be separated upon the expiration of enlistment or the fulfillment of service obligation/completion of required active service. Paragraph 1-33 (Disposition Through Medical Channels) states that except in separation actions under chapter 10 and as provided in paragraph 1-33b, disposition through medical channels takes precedence over administrative separation processing. When the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for administrative separation under chapters 7, 14, or 15, does not meet the medical fitness standards for retention, he/she will refer the Soldier to an MEB. The administrative separation proceedings will continue, but final action by the separation authority will not be taken pending results of the MEB. 14. Army Regulation 40-400 (Patient Administration) assigns responsibilities and provides guidance on patient administration in Army regional medical commands (RMCs) and MTFs. Paragraph 7-1 states physicians who identify Soldiers with medical conditions not meeting fitness standards for retention will initiate a DA Form 3349 (Physical Profile) referring them to the PDES. Soldiers issued a permanent profile with a numerical designator of 3 or 4 in one of the physical profile factors who meet retention standards are referred to the MOS/medical retention board (MMRB). If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the physical evaluation board liaison officer (PEBLO). MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the member’s medical status. DISCUSSION AND CONCLUSIONS: 1. The applicant served on active duty from 8 May 2008 through 8 September 2011. He deployed to and served in Kuwait from 14 August 2009 to 10 March 2010. He returned early from theater after what appears to have been a pattern of misconduct. 2. With respect to the promotion issue: a. None of the applicant's Article 15s are available for review with this case. They are not filed in his service record because he was holding a pay grade lower than E-4 and, by regulation, those records are filed locally. However, their absence does not mean the reduction never happened. The actual hardcopy Article 15s are not the only source of information regarding his reduction and/or misconduct. b. Several of the medical documents he provides reference his Article 15s, reduction, and misconduct. Additionally, his DFAS pay records clearly show he was reduced on multiple occasions, the last of which was to pay grade E-1 on 19 November 2009. Furthermore, his ERB shows he failed his APFT and he was flagged as of 30 October 2009. It also shows his ranks of E-1 and E-2 with dates that are consistent with his pay records. This is the grade and effective date of pay grade shown on his DD Form 214. He provides no evidence that he was recommended for or promoted beyond the pay grade of E-2. c. The fact that he met the criteria in term of time in service does not equate to an automatic promotion. The objective of the Army promotion system is to fill authorized enlisted spaces with the best qualified Soldiers. There is no evidence in the applicant's records and he provides none to show he was best qualified, recommended for promotion, or promoted to E-4. As such, he is neither entitled to this pay grade nor any pay and allowances associated with it. Likewise, he provides no evidence that he was promoted back to any higher grade between the date of his reduction in November 2009 and the date of his discharge in September 2011. 3. With respect to the medical issue: a. The limited medical documents he provides show he was seen on multiple occasions by the Psychiatry/Psychology Clinic due to anger, depression, anxiety about his upcoming separation, sexual dysfunction, and an adjustment disorder. He was prescribed medications, underwent therapy, and hospitalized. But not one single document shows at the time of his release from active duty that there was evidence showing he had a medical condition that was diagnosed as unfitting or warranted his entry into the PDES. b. There is no physical profile capturing any illness or injury. Likewise, there is no commander's statement confirming any condition affected reasonable performance of his grade and military specialty. Nothing in his records shows he incurred an injury or an illness while on active duty. For example, his service record is void of a DA Form 2173 (Statement of Medical Examination and Duty Status) documenting any injuries or illnesses, a line of duty determination that such injuries or illnesses did in fact occur while on duty and not due to own misconduct, a determination by his commander that a given injury or illness rendered him unable to perform the duties required of his former grade and military specialty, a narrative summary documenting a diagnosed medical condition as failing retention standards, a Post-Deployment Health Assessment, or a separation physical that confirm the existence of a condition that warranted his entry into the PDES. c. There was no condition that was actively limiting his ability to perform his military duties. There was no diagnosis of any condition being disabling at the time of his separation. Whenever there is a disability, 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. 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. d. The applicant and his counsel may not fully understand the PDES. Not every Soldier who has an illness or who goes to the doctor is automatically given a medical retirement or separation. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation. The applicant was not unfit in September 2011. It is possible he showed symptoms of PTSD or psychosis at the time; however, such symptoms did not equate to an unfitting physical disability. It is also possible that this condition has worsened with time. However, disabilities that worsen after a Soldier is separated are treated by and compensated for by the VA. e. After a comprehensive review of the applicant's entire case, there appears to be insufficient evidence to support a finding of unfitness. As such, he is neither entitled to a medical discharge nor any back pay associated with such discharge. 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) AR20130005361 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130005361 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1