IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150003190 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ____x___ ____x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150003190 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 affording him processing through the PDES to determine if he should have been discharged or retired by reason of physical disability. a. In the event that a formal PEB becomes necessary, 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 PDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired 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 changing his honorable discharge to a medical retirement without evaluation under the PDES. _____________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. IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150003190 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 medically unfit due to post-traumatic stress disorder (PTSD) and to change his honorable discharge to a medical retirement. 2. He states the attached documents provide evidence of a clear disability that directly correlates to his service. He adds the Department of Veterans Affairs (VA) and Social Security Disability Insurance granted him a 100 percent (%) disability rating. 3. He provides: * DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending on 24 November 2005 and 3 April 2010 * Orders 082-638, dated 23 March 2009 * NGB (National Guard Bureau) Form 22 (Report of Separation and Record of Service) * Orders 189-1024, dated 8 July 2010 * Army National Guard (ARNG) Current Annual Statement, dated 14 July 2010 * VA documents, dated 21 April 2014, 26 March 2014, and 13 February 2015 * Social Security Administration letter, dated 5 November 2015 * Wisconsin Circuit Court Access, Discover Bank versus [Applicant], dated 4 August 2016 * Five supporting statements 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. The applicant enlisted in the Wisconsin ARNG (WIARNG) on 19 August 1998 and he held military occupational specialty 11B (Infantryman). 3. He entered active duty in support of Operation Enduring Freedom on 7 June 2004 and served in Iraq from 24 November 2004 to 29 October 2005. He was honorably released from active duty on 24 November 2005. 4. He entered active duty in support of Operation Iraqi Freedom on 21 February 2009. Orders Number 082-638, issued by U.S. Army Air Defense Artillery Center and Fort Bliss, TX, on 23 March 2009, assigned him to Headquarters, 1st Battalion, 128th Infantry Regiment with further assignment to U.S. Army Garrison, Fort Bliss, TX, with duty at Eau Claire, WI as the Rear Detachment Officer. He was honorably released from active duty on 3 April 2010. 5. Orders Number 189-1024, issued by the Department of the Army and Air Force, Joint Force Headquarters Wisconsin, Wisconsin National Guard, on 8 July 2010 honorably discharged him from the ARNG effective 3 July 2010. 6. A VA rating decision document, dated 26 March 2014, shows the VA awarded the applicant a 100% disability rating for PTSD, previously shown as adjustment disorder with mixed anxiety and depressed mood, from 4 April 2010. 7. The applicant provides the following supporting statements: a. A statement from his former first sergeant (1SG) who said he worked as the Readiness Noncommissioned Officer (NCO) and later as the company 1SG. He adds that the applicant was a Soldier in his platoon for his first deployment in 2004 to 2005. He believes things that the applicant saw and went through affected him, to include the death of two Soldiers. He offers one of those Soldiers was a very good friend of the applicant's and the other was his mentor. He describes the applicant as having a lot of empathy stated and really feels a lot of pain when people in his circle are injured. He had severe anger issues and difficulty controlling his emotions at work. Based on these issues, he and the commander agreed to place him in the rear detachment for the second deployment. He was not in a good mental state of mind, but the applicant wanted to finish his contract rather than receive a medical discharge. b. A comrade, who knew the applicant for many years prior to his deployment in 2004-2005, maintains that prior to the applicant's deployment, he was fun loving, hardworking, and eager to learn everything he could about the military. However, after the deployment, he witnessed a significant change in his personality. He was easily agitated and it was difficult to work with him and keep him calm enough to accomplish his duties. He opines that the applicant is capable of doing things, but he struggles on a daily basis to keep his anger at bay. c. The applicant's mother states it has been a real struggle since the applicant returned from Iraq. His mood swings and anger issues have been so astronomical that it scares her and his other family members. On many occasions, she has called family members or friends to diffuse the situation. She continues by recalling the applicant's mood changes and expounding upon his angry outburst. She states it is like walking on eggshells around him and it is wearing the family down and causing them to drift apart. d. The applicant's significant other states she has dated the applicant for over two years and notes that he has severe mood swings at least once a week. During his temper tantrums, he throws things and often uses profanity. Some days are better than others, but it seems like he is constantly depressed and he is always on the edge. She maintains that she is worried about his wellbeing and wants him to receive the proper treatment before their marriage. e. A comrade states he has known the applicant since he joined the ARNG and they were deployed together from 2004 to 2005. During that deployment, they saw many horrific events that altered the lives of the men in their unit forever. The applicant has not overcome these issues and struggles day to day to control his emotions to have a stable life. He noticed the applicant has severe mood swings and bouts of depression. He says it is hard to depend on the applicant to get his work done without constant supervision due his lack of focus. He opines that the applicant will never be able to hold a job with any employer as it would be more of a risk to hire him than a benefit to the agency. 8. On 9 June 2016, a clinical psychologist from the Office of the Surgeon General (OTSG) rendered an advisory opinion concerning the applicant's request for retirement. He states he conducted an evaluation of the applicant's records available in the Department of Defense (DoD) electronic medical record (AHLTA) to assess the applicant's diagnosis of PTSD at the time of his discharge. He stated: a. The applicant entered the ARNG on 19 August 1998 and was honorably discharged on 3 July 2010. His most recent active duty service was from 21 February 2009 to 3 April 2010. b. The only Behavioral Health (BH) entry in the applicant's service record is a post mobilization BH screening dated 17 February 2010 that noted "PTSD-no risk factors this deployment" and cleared him for demobilization. The applicant told this provider that a psychiatrist at La Crosse VA diagnosed him with PTSD. c. In March 2014, the VA assigned the applicant a 100% evaluation for PTSD, previously shown as adjustment disorder with mixed anxiety and depressed mood, effective 4 April 2010. d. According to the available evidence, the applicant was neither diagnosed with nor treated for PTSD during active duty service. However, the confirmation of combat exposure by one of his comrades, as well as the results of his VA evaluation in August 2010 just 4 months after his separation from service, provide support for his request. 9. On 21 June 2016, the applicant responded to the advisory opinion. He stated the information provided by the 1SG admitting that the commander would not allow him to deploy back to Iraq due to his mental health behavior issues was a key piece of evidence in his case. Also, due to his non-deployable status, he was unable to obtain a top-secret clearance. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES). The regulation 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. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 4-10 states that Medical Evaluation Boards (MEBs) are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status. A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness). b. Paragraph 4-17 provides guidance for Physical Evaluation Boards (PEBs). Specifically, it states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army. The PEB is not a statutory board. Its findings and recommendation may be revised. 3. 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 rated at least 30 percent. DISCUSSION: 1. The evidence of record shows on 3 July 2010, the applicant was honorably discharged from the ARNG. In March 2014, the VA assigned him a 100% disability rating for PTSD, previously shown as adjustment disorder with mixed anxiety and depressed mood effective 4 April 2010. 2. A clinical psychologist, OTSG, states that according to the available evidence; the applicant was neither diagnosed with nor treated for PTSD during his active duty service. However, the confirmation of combat exposure by one of his comrades, as well as the results of his VA evaluation in August 2010, just 4 months after his separation from service, supports his request. 3. Based on the regulatory requirements, it appears that the applicant met the criteria for referral to the PDES under the provisions of Army Regulation 635-40. At this point, it cannot be determined if the applicant met/meets the criteria for a medical retirement/discharge or, if so, with what percentage of disability. In the interest of equity, it would be appropriate to process him through the PDES. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003190 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003190 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2