IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150003950 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X__ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150003950 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150003950 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 to show he graduated from the U.S. Military Academy (USMA) at West Point, New York, or reenrollment to complete his final semester. 2. The applicant states: a. He would like to be awarded a diploma from the USMA or allowed an opportunity to finish one semester of classes. b. He was academically discharged from the USMA and not awarded a diploma even though he fulfilled the required hours/credits. He filed an appeal, but he didn't have adequate medical information at that time. c. He was medically discharged from the military a year and a half after his academic separation from the academy. His medical discharge focused on the period from March 2011 to December 2011. In March 2011, he suffered a head injury. d. He received a disability rating of 70 percent for post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). This information was not available to the USMA Academic Board. 3. The applicant provides: * two undated self-authored statements * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 199 (Informal Physical Evaluation Board Proceedings) * physical evaluation board packet * medical evaluation board packet * USMA Academic Board proceedings * academic transcripts * Integrated Disability Evaluation System West Point Narrative Summary, dated 17 October 2012 * Department of Veterans Affairs Rating Decision, dated 28 January 2013 * retirement orders * medical records 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 enrolled in the USMA at West Point on 2 July 2007. 3. On 11 March 2011, he suffered a head injury that was unrelated to his attendance at the USMA. 4. On 16 December 2011, the USMA Academic Board determined he was deficient in three classes and recommended his academic separation. In January 2012, he appealed his separation action by the USMA Academic Board. In February 2012, his petition was denied. The USMA Academic Board determined the matters he submitted presented no new substantive information that was not already considered. 5. Item 7 (Executive Summary/Action Memorandum) of the USMA Form 5 (West Point Staffing Form), dated 22 December 2011, states: * the applicant was scheduled to graduate on 16 December 2011 * he was separated by the USMA Academic Board on 16 December 2011 * he has a history of multiple TBI's, most recently a severe TBI in Spring 2011 * his academic separation is pending treatment of his medical conditions * he was medically evaluated in December 2011 * he requires treatment * the USMA Superintendent approved medical leave for the applicant not to exceed 6 months 6. He provided a Department of Veterans Affairs Disability Evaluation System proposed rating, dated 28 January 2013, showing a 70-percent disability rating was proposed for PTSD with depression, TBI, and hyperventilation-induced dizziness. 7. On 19 February 2013, an informal physical evaluation board found him physically unfit due to PTSD with depression, TBI, and hyperventilation-induced dizziness. The PEB recommended a 70-percent disability rating and his placement on the Temporary Disability Retired List (TDRL) with reexamination in August 2013. 8. On 14 March 2013, he was placed on the TDRL with a disability rating of 70 percent. 9. On 1 April 2015, he was removed from the TDRL and permanently retired by reason of permanent physical disability with a disability rating of 70 percent. 10. He provided an undated self-authored statement wherein he stated: a. He completed all the required classes for his major in Business Management. The classes he failed in his final semester were considered electives and were not part of his courses required to finish his major. He started the semester approximately 2 weeks after classes had begun and he wasn't able to receive the proper books until a month and a half later. He wasn't able set up his computer to access class material and communicate with his instructors. b. His PTSD and TBI symptoms progressively worsened and he ended the semester failing multiple classes. When the USMA Academic Board convened to make a decision, the board was not aware of his symptoms or they did not have any of the medical information from his medical discharge since that information wasn't gathered until a year later. c. His overall performance in his final semester at the USMA would have been much different had he received treatment much sooner rather than after being academically separated. 11. He provided a second undated self-authored statement wherein he stated: a. He hopes his academic separation from the USMA will be overturned and he is granted a diploma or granted an opportunity to finish the classes he needs in order to receive a diploma. b. In January 2012, he petitioned the USMA Academic Board to reconsider its decision to academically separate him. His petition was denied. At that time, there was not enough medical evidence to support his claim. c. Following his academic separation, he was placed on medical leave to receive further treatment for the head injury he received in March 2011. At no time before that had he been offered any medical treatment for the head injury. d. He was not aware at the time, but shortly after his head injury he began to experience all the signs and symptoms associated with PTSD and TBI. His symptoms progressively worsened over the course of the next year and a half until it was determined that he would be medically discharged. He was medically discharged for PTSD and TBI with a disability rating of 70 percent. e. He believes he could have performed much better in his final semester at West Point if he had received treatment much sooner. Instead of receiving medical treatment for the TBI, he was readmitted to West Point in the fall of 2011, approximately 2 weeks after classes had already begun. It took him another month and a half to receive the proper books for his classes as well as setting up his computer in order to access all the materials needed for his classes and to communicate with his professors. f. His symptoms progressively worsened and he ended the semester by failing multiple classes. His overall performance from March 2011 to December 2011 was noted in the medical packet used in determining his medical discharge rating for PTSD and TBI. g. As a member of the football team and as a cadet, he received previous head injuries, but it was following the head injury he received in March 2011 that his overall performance significantly went downhill and where he developed all the symptoms associated with PTSD and TBI. 12. An advisory opinion was obtained from the Chief of Staff, USMA, dated 14 January 2016, who recommended disapproval of the applicant's request and further stated: a. On 11 March 2011, the applicant suffered a head injury in an event that was unrelated to his attendance at West Point. He returned to the USMA in the summer of 2011 to begin his final semester of classes. He was determined to be deficient in three classes during that semester by the USMA Academic Board. b. On 16 December 2011, he received notice of the Academic Board's findings. On 10 January 2012, he submitted matters for reconsideration. On 29 February 2012, the USMA Academic Board considered the matters and determined there was no new substantive evidence that was not considered prior to its 16 December findings and reaffirmed its recommendation to academically separate the applicant. Because the Academic Board determined the applicant's deficiencies were not willful, no recoupment action was taken with respect to the costs of his education at West Point. c. On 14 March 2013, he was medically retired with a 70-percent disability rating for conditions related to the head trauma he suffered on 11 March 2011. d. The applicant makes two principal arguments. First, he contends he was not referred to or offered any treatment for the March 2011 head injury. Because of this lack of treatment, he was unaware of the exact nature of his injuries – to include TBI and PTSD – until he received his disability rating in March 2013. He alleges the Academic Board was similarly ignorant of the severity of his condition when it denied his request for reconsideration. However, his personnel records indicate he was seen at least eight times for his injury by medical staff between March and December 2011 and he underwent treatment and/or evaluation at the Walter Reed National Military Medical Center. Further, he included a report of medical evaluation from a board-certified neurologist in Houston, Texas, when he submitted his rebuttal matters to the Academic Board on 10 January 2012. This report provided the Academic Board with all the necessary medical information it required in order to make an informed decision, including the neurologist's opinions regarding the applicant's PTSD and TBI. e. After considering the matters submitted by the applicant, the USMA Academic Board determined the neurologist's report did not contain any additional substantive information and denied the applicant's request for reconsideration. In making this determination, the Academic Board gave due consideration to all of the applicant's arguments and to the neurologist's medical opinion. It weighed this evidence against the evidence of the applicant's academic deficiencies and determined that nothing in the rebuttal warranted reconsideration of its original recommendation to separate him. f. The applicant's second assertion is that he was unfairly disadvantaged by returning to West Point late in the semester and that he received inadequate support once he arrived. Specifically, he claims he did not get his computer set up for academic work until 6 weeks after his arrival. It is true that he did not return until Lesson 3, on or about 19 August 2011, which resulted in missing the first two lessons in each class through no fault of his own. However, the Academic Board gave due consideration to his late start and did not find that it excused his academic deficiencies. The applicant's claims of lack of technical support are also unpersuasive. His records indicate he did not submit his computer for reimaging until 6 September and that it was returned to him on 8 September. As a first class cadet, he would have been aware of the steps he needed to complete to prepare for the new semester and his failure to submit his computer for reimaging until 6 September was not the result of any neglect or deficiency on the part of USMA staff. Moreover, as with the medical information, the Academic Board was aware of this complaint when it declined to reconsider its initial recommendation to academically separate him. g. The ABCMR should deny the applicant's request and find that his academic separation was valid. The Academic Board was aware of all relevant information related to the applicant's head injuries and his logistical difficulties when he returned to West Point in August 2011. The Academic Board took all of his rebuttal matters into account, including a lengthy report from the neurologist, and determined that his separation was warranted. There is no new substantive information in the applicant's submission to the ABCMR that invalidates the findings of the USMA Academic Board. 13. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He responded and provided copies of his medical evaluation board proceedings, physical evaluation board proceedings, medical records, and reports from his neurologist. In his rebuttal, he stated: a. There are quite a few points he would like to make in rebuttal to the USMA correspondence and communication. He submitted numerous documents supporting his claims. b. While he was seen approximately eight times between March and December 2011, none of the visits were in regard to treatment for PTSD. During his 28 October 2011 visit, the doctor noticed the amount of head injuries he had during his commissioning physical, including the extreme incident in March 2011. The doctor referred him to the Walter Reed National Military Medical Center for further evaluation to determine if he could be commissioned in the Army as an officer. It was during one of his final visits in December 2011 when it was suggested that his symptoms could be PTSD related and stressed how critical treatment would be should that be his diagnosis. Instead of being diagnosed early on, his PTSD condition only worsened left untreated during those previous 9 months. c. Although the USMA Academic Board was provided with one report from the neurologist, the Academic Board did not receive others. The initial report was based on an evaluation completed in July 2011. He was unable to see the neurologist after that because the neurologist was based in Texas and he had returned to West Point for his final semester. He was seen approximately six to seven more times after the evaluation performed in 2011 for follow up once he returned to Texas. These follow-up sessions further explain his condition that developed since that initial July 2011 visit. Again, the Academic Board did not see this extra information. The medical evaluation board based its findings on the time frame shortly after his major head injury in March 2011 to December 2011. This information was unavailable for his rebuttal to the Academic Board. d. Although it is true he returned to West Point at Lesson 3, he was unable to return his computer for reimaging until 6 September for multiple reasons. It was not his failure by not submitting his computer until 6 September because he had tried multiple times prior to that date to no avail. Finally, after he explained to his company commander that he was having difficulty getting his computer reimaged, he (his company commander) had to take it upon himself to make a final request to have it reimaged on 6 September. The time it took for his computer to be reimaged made it extremely difficult for him, not only to communicate with his instructor, but to have access to class material. e. On 16 December 2011, he received the findings and recommendation to separate him from the USMA Academic Board. He then submitted matters that were available to him at the time for reconsideration on 10 January 2012. The information was very limited and he was unaware at the time that he began to experience signs and symptoms of TBI and PTSD shortly after his major head injury in March 2011 that progressively worsened over the next 9 months. These medical records were compiled throughout the 6-8 month process of being medically discharged from the military, which began in August 2012. f. On 14 March 2013, he was medically retired and placed on the TDRL with a 70-percent disability rating for conditions related to the head trauma he suffered on 11 March 2011. All of this new information was not available to the Academic Board members when they made their decision on 16 December 2011 to separate him or on 29 February 2012 when his request for reconsideration was denied. g. There were many other factors that added to the stress he incurred over the last semester that worsened matters. He not only returned to West Point after classes had already begun, he was also at a disadvantage when communicating with instructors as well having access to class material. It then took him another month and a half to receive the proper books for the classes assigned to him. This was completely out of his control and hindered his ability to successfully complete his final semester. Simultaneously, his PTSD symptoms progressively worsened over the course of the semester. He did receive previous head injuries as a member of the football team and as a cadet, but it was from the head injury he received on 11 March 2011 that his overall performance significantly went downhill and where he developed all the symptoms associated with PTSD and TBI. It was not until approximately 1 week before graduation that he was finally evaluated by doctors for concerns of his major head injury in March 2011 and previous head injuries. Information relating to his PTSD was not available for the Academic Board members when they made their decision. REFERENCES: 1. Army Regulation 210-26 (USMA) provides policy and procedures for the general governance and operation of the USMA. a. Paragraph 4-4 (Deficient cadets) states deficient cadets are those who fail to achieve the standards of performance as recommended by the Academic Board or the Commandant and established by the Superintendent in the academic, military, or physical programs. Determination of a cadet's deficiency will be established by the Academic Board or the Commandant, as appropriate. The Academic Board's determination of deficiency will be based on the recommendation of the head of a department of instruction and the program director. b. Paragraph 4-5 (Actions Available for Deficiency) states that when a cadet is found to be deficient in the academic, military, or physical programs, the following actions may be recommended to the Superintendent by the Academic Board or the Commandant, as appropriate: * separation * turn-back – transfer of the cadet to the next lower class * retention with condition – concurrent with opportunity for the cadet to demonstrate proficiency under specified conditions 2. The West Point Core Military Science Program consists of three 40-lesson courses that prepare cadets for tactical leadership. DISCUSSION: 1. The applicant disputes his academic separation from the USMA at West Point and requests correction of his military records to show he graduated from the USMA or reenrollment to complete his final semester. 2. The evidence of record shows: a. He suffered a head injury in March 2011 unrelated to his attendance at the USMA. b. He returned to the USMA in the summer of 2011 to begin his final semester of classes. c. In December 2011, the USMA Academic Board determined he was deficient in several classes. d. In January 2012, he submitted a request for reconsideration. e. In February 2012, the Academic Board determined there was no new substantive evidence that was not considered previously and reaffirmed its recommendation to academically separate him. No recoupment action was taken because the applicant's deficiencies were not willful. He was academically separated from the USMA. f. On 14 March 2013, he was medically retired with a 70-percent disability rating for conditions related to the head trauma he suffered in March 2011. g. On 1 April 2015, he was removed from the TDRL and permanently retired by reason of permanent physical disability with a disability rating of 70 percent. 3. He contends that medical information relating to his PTSD and TBI was not available for the USMA Academic Board members when they made their decisions. However, the USMA advisory official indicates the Academic Board was provided all necessary medical information in order to make an informed decision. The medical documentation included medical opinions from the applicant's neurologist regarding his PTSD and TBI. 4. His contention that he was unfairly disadvantaged by returning to West Point late in the semester was carefully considered. However, the USMA advisory official states the Academic Board gave due consideration to the applicant's late start and did not find that it excused his academic deficiencies. 5. It appears the USMA Academic Board was aware of all relevant information related to the applicant's head injuries and his logistical difficulties when he returned to West Point in August 2011. The Academic Board took into account all of his rebuttal matters, including a lengthy report from the applicant's neurologist, and determined his separation was warranted. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003950 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003950 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2