BOARD DATE: 14 January 2015 DOCKET NUMBER: AR20140003360 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 reconsideration of his previous request to show he was retired for disability based on his diagnosis of post-traumatic stress disorder (PTSD). 2. The applicant submits a new request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his deployment to Kuwait/Iraq from 18 March to 1 August 2003. 3. The applicant states he was diagnosed with chronic PTSD with anxiety disorder, insomnia and depression, and panic disorder with agoraphobia in 2005 after his deployment to Afghanistan. He was seen by psychiatrists starting in 2005. His battalion commander knew he had PTSD and that he was sick, but they deployed him anyway. While serving in Iraq from 31 July 2006 to 14 October 2007 he had to go to mental health the entire deployment. His medical evaluation board (MEB) process was started but cut short so they could deploy him. He was never able to finish his MEB after his return from Iraq because it was time for him to clear. He didn't have time to clear so his orders were extended changing his expiration of term of service (ETS) date. 4. He states he was also deployed to Kuwait/Iraq from 18 March to 1 August 2003 with the 61st Area Support Medical Battalion and he was deployed to the Philippines from 7 February to 6 March 2006. 5. The applicant provides: * DD Form 2796 (Post-Deployment Health Assessment), dated 29 July 2003 * a memorandum for record (MFR), dated 5 November 2003, from the 61st Area Support Medical Battalion * DD Form 1610 (Request and Authorization for TDY (temporary duty) Travel of DOD (Department of Defense) Personnel), dated 31 January 2006 * DD Form 2795 (Pre-Deployment Health Assessment), dated 21 July 2006 * an undated memorandum from the Soldier Readiness Program (Conroy Bowl) * DA Form 7425 (Readiness and Deployment Checklist), dated 11 July 2006 * a Check in Report, dated 11 July 2006 * a Check in Report, dated 26 July 2006 * 581st Medical Company deployment list * an MFR, dated 26 July 2006, from Headquarters, 3rd Battalion, 7th Field Artillery (FA), Schofield Barracks, HI * DA Form 3349 (Physical Profile), dated 18 August 2006 * a memorandum, dated 3 January 2008, from the 3rd Battalion, 7th FA, 31st Brigade Combat Team, 25th Infantry Division * his DD Form 214 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120017121, on 21 May 2013. 2. The evidence he provided is new, which requires consideration by the Board. 3. On 16 March 2000, he enlisted in the Regular Army. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 92G (Food Service Operations). 4. He immediately reenlisted on 29 July 2002 for 4 years and extended his enlistment for 4 months on 25 September 2003. 5. On his DD Form 2796, dated 29 July 2003, he indicated he had not sought, or intended to seek, counseling or care for his mental health. 6. An MFR, dated 5 November 2003, from the 61st Area Support Medical Battalion stated the applicant, a member of the 61st Area Support Medical Battalion, was deployed to Operation Enduring Freedom/Operation Iraq Freedom from 18 March to 1 August 2003 in Kuwait/Iraq. 7. On 1 July 2004, he was promoted to sergeant/E-5. 8. An approved DD Form 1610, dated 31 January 2006, directed him to proceed TDY for training attendance to Manila, Philippines on 7 February 2006 for 29 days. 9. On a DD Form 2795, dated 21 July 2006, the applicant indicated he was on a profile, or light duty, or undergoing a medical board. He also indicated he had sought counseling or care for his mental health during the past year. The final medical disposition stated he was not deployable due to mental health. 10. An undated memorandum from SRP (Conroy Bowl), signed by a clinical psychologist, indicated he was non-deployable/not fit for duty. 11. A DA Form 7425, dated 11 July 2006, shows the handwritten note "NON DEPLOY" at the top of page 1. However, pages 2 and 3 of the form do not show any checks in the "NO GO" blocks in the Deployment Validation section. 12. Check in Reports, dated 11 and 26 July 2006, contain notations that the applicant was non-deployable. 13. On 26 July 2006, the Commander, 3rd Battalion, 7th FA, 25th Infantry Division reviewed the recommendation for the consultation that was generated from the Soldier Readiness Center and discussed the recommendation with the battalion medical officer. He decided to deploy the applicant because at their current strength in his MOS and skill level it was imperative that he deploy. He directed the battalion medical officer to profile the applicant to be consistent with his limitations and to coordinate for additional medical care and rehabilitation while in theater. 14. He deployed with his unit on or about 31 July 2006. 15. A DD Form 3349, dated 18 August 2006, shows the applicant was placed on temporary profile for anxiety disorder, not otherwise specified and panic disorder with agoraphobia. He had a history of anxiety disorder and could not function at his best level at the moment. He would need mental health treatment and continued psychiatric follow-up. He was non-deployable at the current moment. He would be scheduled for individual therapy to work on anxiety and panic issues. Under "S" (psychiatric) of the physical profile the applicant was assigned the numerical designator "2." 16. The applicant's ETS was extended from 28 November 2006 to 1 April 2008 due to stop/loss action. 17. On 1 April 2008, he was discharged by reason of completion of required active service. He completed 8 years and 16 days of active duty that was characterized as honorable. Item 18 (Remarks) of his DD Form 214 shows his deployments as: * "SERVICE IN AFGHANISTAN 20040324 - 20050323" * "SERVICE IN IRAQ 20060731 - 20071014" 18. Service medical records show he was seen by a mental health officer on a near-weekly basis from December 2006 through September 2007. These records indicate he had been diagnosed with PTSD on 12 December 2006. 19. His record includes three Noncommissioned Officer Evaluation Reports (NCOER) covering 12-month rating periods ending June 2005, June 2006, and June 2007. The forms show his raters rated his overall potential for promotion and/or service in positions of greater responsibility as "among the best" for the first period and "fully capable" for the two later periods. 20. Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as amended, provides the standards for medical fitness for retention and separation, including retirement. Soldiers with medical conditions listed in this chapter should be referred for disability processing. a. Chapter 7 (Physical Profiling) of Army Regulation 40-501 provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. b. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his or her functional capacity. c. To make a profile serial more informative, two modifiers are used: "P" (permanent) and "T" (temporary). The "T" modifier indicates that the condition necessitating a numerical designator "3" or "4" is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity. In no case will individuals in military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition. 21. Army Regulation 635-40 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. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. a. When a member is being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit. b. The regulation states the mere presence of an 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating against medical retention qualification standards established in Army Regulation 40-501. c. Soldiers must be referred to the PDES. If a treating physician believes a Soldier is unable to perform full military duty or is unlikely to be able to do so within a reasonable period of time – normally 12 months – the Soldier is referred to an MEB at the medical treatment facility where treatment is being provided. The MEB is an informal process comprised of at least two physicians who compile, assess, and evaluate the medical history of a Soldier and determine if the Soldier meets or will meet retention standards. If the Soldier meets retention standards, the Soldier is returned to duty in his/her current military occupational specialty. If the Soldier does not meet retention standards, the case will be referred to a physical evaluation board (PEB) for further disposition and determination of fitness. d. To be permanently retired for physical disability, a Soldier's disabling condition must have been incurred or aggravated while entitled to basic pay and the condition must be rated as 30% disabling or more. 22. Army Regulation 635-5 (Separation Documents), then in effect, provided that when an active duty Soldier was deployed with his unit during the period covered by the DD Form 214, an entry was made in item 18 to show the name of the country deployed to and the inclusive dates in YYYY/MM/DD format. DISCUSSION AND CONCLUSIONS: 1. He was diagnosed with PTSD during his active duty service. The records show he was receiving treatment on a near-weekly basis from December 2006 through September 2007. However, the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. 2. He contends his MEB processing was cut short so he could be deployed on 31 July 2006. However, the DD Form 3349, dated 18 August 2006, did not indicate that he was to be referred to an MEB for his medical condition. There is no evidence he was referred to an MEB. 3. The battalion commander determined the applicant would deploy with the battalion. In doing so, he determined that adequate mental health treatment and follow-up would be available in theater. He directed the battalion surgeon to coordinate additional medical care and rehabilitation for the applicant while in theater. 4. The NCOERs covering 12-month rating periods ending June 2005, June 2006, and June 2007 show his continued performance of assigned duties commensurate with his rank and MOS created a presumption that he was fit for duty. There is no clear and convincing evidence that he was unable to perform his duties due to PTSD at the time of his separation. 5. In view of the above, there is insufficient evidence to show the applicant was unfit for duty on the date of his separation. 6. Based on the approved DD Form 1610 he was TDY for training attendance to the Philippines from 7 February to 7 March 2006. TDY for training is not considered a deployment. Therefore, this period is not shown as a deployment on his DD Form 214. 7. Based on the MFR, dated 5 November 2003, he was deployed to Kuwait/Iraq from 18 March to 1 August 2003. Therefore, this deployment should be added to his DD Form 214 as "SERVICE IN KUWAIT/IRAQ 20030318 - 20030801." 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. 2. On the request for reconsideration, 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 to amend the decision of the ABCMR set forth in Docket Number AR20120017121, dated 21 May 2013. 3. On the new issue, the Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief concerning adding deployments to his DD Form 214. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following entry to item 18 of his DD Form 214 with a separation date of 1 April 2008: "SERVICE IN KUWAIT/IRAQ 20030318 - 20030801." 4. The Board further determined that the evidence presented was 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 showing his TDY to the Philippines on his DD Form 214. _________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) AR20140003360 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140003360 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1