IN THE CASE OF BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150004545 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: 1 September 2016 DOCKET NUMBER: AR20150004545 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: 1 September 2016 DOCKET NUMBER: AR20150004545 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 that his discharge be changed to a medical discharge. 2. The applicant states that the Veterans Administration (VA) has rated him 80 percent service connected disabled and 100 percent unemployable due to his injuries sustained in combat. 3. The applicant provides: * DD Form 214 for period of mobilization to active duty ending 8 August 2008 * NGB Form 22 (Report of Separation and Record of Service) for period ending 30 November 2009 * NGB Form 22A (Correction to NGB Form 22) issued 26 April 2013 * Michigan Army National Guard (MIARNG) discharge orders 334-166, dated 30 November 2009 * MIARNG orders 115-061, dated 25 April 2013, rescinding orders 334-166 * MIARNG orders 116-052, dated 26 April 2013 * social security card * VA Rating Decision, dated 9 October 2013 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 on 16 February 2006 for an 8-year period of service in the ARNG. He opted for the Student Loan Repayment program and enlistment cash bonus. He was mobilized on 19 July 2007 and deployed to Iraq from 25 September 2007 to 14 July 2008. He was demobilized and released from active duty on 8 August 2008. 3. His military medical records from 31 July 2007 to 2 August 2008, provided by the applicant, show the following: a. On 30 July 2007, he injured his left shoulder during combatives training. The injury was treated with physical therapy, profile rest, and pain medication. On 16 August 2007, the applicant reported no pain, that he was feeling fine, and requested removal of the profile. He was released from medical care without limitations. b. On 11 November 2007, the applicant was treated for a left ankle sprain sustained while running. The sprain was treated with rest from weight-bearing activities for 3 days. c. On 4 January 2008, the applicant reported a flare-up of left shoulder pain and numbness of the left hand. The applicant was referred to physical therapy. d. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 13 June 2008, shows that on 2 May 2008 the applicant complained of headaches and dizziness following an improvised explosive device (IED) blast which occurred while performing a route clearance mission in Baghdad, Iraq. This injury was determined to be in the line of duty by the commanding general. On 6 May 2008, a follow-up medical evaluation shows no headaches, no eyesight problems, no tinnitus or hearing changes, no nausea, no dizziness, no decrease in concentration, and no difficulty keeping balanced. The applicant did report difficulty sleeping and waking up at night. His psychological symptoms were noted as high irritability. The applicant was released without limitations. e. On a DA Form 2697 (Report of Medical Assessment) filled out by the applicant on 16 July 2008, he indicated that he had mild traumatic brain injury (MTBI), shoulder injury, achy joints, back pain, etc.. The Fort McCoy medical treatment facility attending physician noted that these symptoms were unresolved and that the applicant was cleared for demobilization with follow-up with the VA and TRICARE. The applicant was referred to the Troop Medical Clinic (TMC) at Fort McCoy for physical therapy. 4. An AWOL Report and a letter addressed to the applicant, dated 18 September 2009, show he had accumulated more than 12 periods of unexcused absence within a 12-month period as of September 2009. The applicant was sent unexcused absence notification letters but there is no record of response although return receipt cards show that he signed for them. A memorandum for record issued by a sergeant first class (SFC) in his unit stated that he spoke to the applicant who stated that he had several medical issues and wanted out of the Guard. The SFC confronted the applicant about hearing he was into drugs and the applicant denied it. The applicant did not return any further calls and continued his unexcused absences from IDT. 5. On 5 November 2009, the applicant’s company commander recommended that the applicant be discharged from the ARNG and the U.S. Army Reserve (USAR) for unsatisfactory participation accumulating over 9 periods of AWOL within a 12-month period. The request was approved by the MIARNG and the applicant was so discharged from the ARNG and USAR on 30 November 2009 with a general discharge for unsatisfactory participation. 6. On 25 April 2013, the MIARNG revoked the 30 November 2009 orders discharging him for unsatisfactory participation and issued new orders honorably discharging the applicant on 30 November 2009 for being medically unfit for retention in accordance with National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35L(8) and Army Regulation 40-501 (Standards for Medical Fitness). His NGB Form 22 was so amended. 7. On 9 October 2013, the VA issued a rating decision showing the following for a combined compensation of 80 percent: * 50 percent for post-traumatic stress disorder (PTSD); service connected, Gulf War incurred * 40 percent for TBI with headaches; service connected, Gulf War incurred * 20 percent for degenerative disc disease of the lumbar spine; service connected, Gulf War incurred * 10 percent for tinnitus; service connected, Gulf War incurred 8. The Chief, Behavioral Health Division, Department of the Army Office of the Surgeon General (OTSG), reviewed the applicant’s application, evidence, and military medical records. The advisory official opined that there was no documentation at the time of discharge that showed the applicant met criteria for a behavioral health (BH) condition that did not meet retention standards. Therefore, there is no basis on which to change the applicant’s separation to a medical disability discharge related to BH conditions. 9. The applicant provided a rebuttal to the advisory opinion. He provided a copy of his DD Form 2796 (Post Deployment Health Assessment) where he filled out pages 1-3 stating that he had headaches, swollen and stiff joints, blurred vision, difficulty remembering, nightmares, and was on guard, easily startled, and felt detached. Page 4 of the DD Form 2796 completed by the health provider on 17 July 2008 shows that the applicant’s health is generally good, that he continued to have problems with his left shoulder injury, that he then had no mental health problems, but the applicant was planning to seek counseling or care for mental health. The medical provider concluded the health assessment by referring the applicant to the TMC for left shoulder pain and MTBI. 10. The applicant stated that after he returned home, he went to the VA for mental and physical help. He provides 5 pages of information (pages 5-9) from the VA on medical appointments and medications prescribed between 9 October 2008 and 4 April 2010. He states that a number of medications were prescribed by the VA to treat mental health conditions, some with undesirable side effects. 11. He stated he was not awarded a service connected disability rating for PTSD or TBI by the VA until 2013. In addition to the 2013 VA disability rating provided with his application, he provided with his rebuttal a 23 June 2016 VA disability rating decision showing that on 1 June 2016, the VA raised his PTSD disability percentage from 50 percent to 70 percent and that he has a combined rating of 90 percent. REFERENCES: 1. National Guard Regulation 600-200, 31 July 2009, paragraph 6-35L(8) (Medically unfit for retention per Army Regulation 40-501), states that commanders, who suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a complete medical examination per Army Regulation 40-501. Soldier will be notified in writing of the requirement to obtain a physical, and given 90 days after the letter is mailed to comply with this requirement. If the Soldier fails to report as directed, the Soldier will be discharged under this regulatory authority. 2. Army Regulation 135-178 (Army National Guard and Army Reserve, Enlisted Administrative Separations), 13 March 2007, paragraph 15-1k (Medically unfit for retention), states that discharge will be accomplished when it has been determined that a Soldier is no longer qualified for retention by reason of medical unfitness. 3. Title 38, U. S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in an Army separation. The Army considers only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two Government agencies may arrive at different disability rating decisions. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 4. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome. Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 5. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. a. Criterion A, stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) (1) Direct exposure. (2) Witnessing, in person. (3) Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental. (4) Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures. b. Criterion B, intrusion symptoms: The traumatic event is persistently re-experienced in the following way(s): (one required) (1) Recurrent, involuntary, and intrusive memories. (2) Traumatic nightmares. (3) Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. (4) Intense or prolonged distress after exposure to traumatic reminders. (5) Marked physiologic reactivity after exposure to trauma-related stimuli. c. Criterion C, avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required) (1) Trauma-related thoughts or feelings. (2) Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations). d. Criterion D, negative alterations in cognitions and mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required) (1) Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs). (2) Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"). (3) Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences. (4) Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame). (5) Markedly diminished interest in (pre-traumatic) significant activities. Feeling alienated from others (e.g., detachment or estrangement). (6) Constricted affect: persistent inability to experience positive emotions. e. Criterion E, alterations in arousal and reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required) (1) Irritable or aggressive behavior (2) Self-destructive or reckless behavior (3) Hypervigilance (4) Exaggerated startle response (5) Problems in concentration (6) Sleep disturbance f. Criterion F, duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. g. Criterion G, functional significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H, exclusion: Disturbance is not due to medication, substance use, or other illness. DISCUSSION: 1. On 26 April 2013, the MIARNG changed the applicant’s 30 November 2009 discharge due to unsatisfactory participation to a discharge for being medically unfit for retention. Records are not available to show what medical condition the MIARNG found to be the basis for this change. In the absence of evidence to the contrary, an assumption of regularity in this change of discharge must be made and that it was issued properly and equitably. 2. The OTSG found no documentation at the time of discharge that showed that the applicant met criteria for a BH condition that did not meet retention standards, and opined that there is no basis on which to change the applicant’s separation to a medical disability separation related to BH conditions. On the applicant’s Post Deployment Health Assessment, the attending physician noted on 17 July 2008 on page 4 that the applicant had no mental health problems at the time of demobilization. 3. The applicant states that the VA did not diagnose him with service connected PTSD, TBI, degenerative disc disease, and tinnitus until 2013. The applicant provided a copy of the 9 October 2013 VA disability rating. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. However, an award of a VA disability rating does not establish error or injustice in an Army separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004545 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004545 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2