IN THE CASE OF: BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150007719 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: 18 October 2016 DOCKET NUMBER: AR20150007719 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant partial amendment of the ABCMR's decision in Docket Number AR20090010604 on 22 December 2009 and Docket Number AR20100025919 on 3 May 2011. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by directing that the Office of the Surgeon General review the available records to determine if he should have been referred to the Physical Disability Evaluation System (PDES). If it is determined that he should have been referred to the PDES prior to separation, these proceedings serve as the authority to afford him that process. 2. 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 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. 3. 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 type of discharge without benefit of the review described above. ___________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: 18 October 2016 DOCKET NUMBER: AR20150007719 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, that his honorable discharge due to a physical or mental condition, not a disability, under Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, be changed to a medical separation or retirement. 2. The applicant states that AR 635-200, paragraph 5-17, shows that if post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and/or other comorbid mental illnesses are significant contributing factors to a mental health diagnosis, the Soldier will not be processed for separation under this paragraph, but will be evaluated under the physical disability system in accordance with AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 3. The applicant provides: a. Social Security Administration (SSA) notification letter, dated 11 March 2015, concerning SSA disability benefits. b. Department of Veterans Affairs (VA) Rating Decision, dated 29 October 2012, showing: (1) His 30 percent service-connected disability rating for PTSD with residuals of TBI was increased to 70 percent. (2) His 50 percent service-connected disability rating for migraines secondary to residuals of closed head injury to include post concussive headaches remained the same. (3) His 30 percent service-connected disability rating for residuals of closed head injury, to include post-concussive headaches, was increased to 40 percent. (4) His combined disability rating was 90 percent. c. Application for the VA Vocational Rehabilitation Program, dated 7 September 2011. d. VA Work Adjustment Training Exit Summary, dated 27 May 2010. 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) Docket Number AR20090010604 on 22 December 2009 and Docket Number AR20100025919 on 3 May 2011. 2. The applicant enlisted on 6 July 2004 for a 4-year period of service. He completed training and was awarded the military occupational specialty 88M (Motor Transport Operator). He attained the rank of private first class (PFC)/pay grade E-3. The applicant served in Iraq in support of Operation Iraqi Freedom from 6 December 2004 to 26 March 2005. 3. On or about 26 March 2005, the applicant was medically evacuated to Germany from Iraq and later sent to Walter Reed Army Medical Center (WRAMC). A Summary of Evaluation from the Defense and Veterans Brain Injury Center (DVBIC), WRAMC, conducted from 11 through 15 April 2005, shows that on 15 March 2005 the applicant was in the passenger seat of a military vehicle that was hit head-on by another vehicle at 40-50 miles per hour. He hit the windshield or dash on the left side of his head. He was wearing his Kevlar at the time of injury. He required no surgical intervention. The applicant reported loss of consciousness of approximately 24 hours. He awoke at a combat support hospital. He reported retrograde amnesia of several days. The last thing he remembered was getting ready for two or three missions before the accident. He had post-traumatic amnesia of a few days. The findings of the examination and neuropsychological testing were consistent with those expected of someone with a mild to moderate TBI and suggested frontal lobe difficulties as well as some right hemispheric impairment. The DVBIC recommended the applicant not be deployed, a limited duty profile with no more than 8-hour work days, referral for outpatient occupational therapy to maximize adaptive strategies, and psychoeducation regarding his brain injury and any possible emotional issues. 4. On 26 April 2005, the DVBIC, WRAMC, issued a temporary S3 profile (S = psychiatric) due the applicant’s TBI with limitations of no deployment, no field duties, and work shifts no longer than 8 hours a day. The temporary profile was to expire on 26 July 2005. He was returned to duty at Fort Bragg, NC. In spite of his profile, his jump record shows that he logged two jumps from a UH-60 helicopter on 22 and 23 May 2005. 5. In August 2005, he was evaluated by the 82nd Airborne Division Mental Health (DMH) in August 2005. At that time, he was having work related problems described by the Division Psychiatrist as "trouble managing competing demands of his [chain of command] and his profile." This was attributed to difficulty with memory and mental flexibility. On 4 August 2005, he was given a temporary P3 profile (P = physical stamina) with a 4 October 2005 expiration date with limitations to include 8 hour duty days, no field duty, and run at his own pace. The DVBIC, WRAMC, also issued a new temporary S3 profile on 10 August 2005 with expiration date of 10 November 2005 with the same limitations. 6. A DA Form 3822-R (Report of Mental Status Evaluation), dated 1 December 2005, shows the 82nd Airborne Division psychologist, a captain, and a psychiatrist, a major, conducted a clinical interview of the applicant. The psychologist's diagnosis of the applicant was cognitive disorder, not otherwise specified and adjustment disorder with mixed disturbance of emotions and conduct. They recommended inpatient hospitalization treatment which he underwent from 1 to 5 December 2015 at Womack Army Medical Center (WAMC). They also recommended to the applicant's command that the applicant be processed for a medical board or administrative separation under the provisions of AR 635-200, paragraph 5-17, for other designated physical or mental conditions, due to the risk of continued problems the applicant was experiencing that would lead to misconduct. They reported that he was recently accused of disrespect and a period of absence without leave. 7. A WAMC memorandum, dated 5 December 2005, shows the applicant underwent a mental status evaluation by a psychiatrist in Inpatient Psychiatry. The examining psychiatrist found the applicant suffered from a cognitive disorder, not otherwise specified, and adjustment disorder with mixed disturbance of emotions and conduct. The applicant’s state of emotional and/or behavioral dysfunction was of such severity that the applicant’s ability to perform military duties was significantly impaired. He found the applicant had the mental capacity to participate in separation proceedings and that he was mentally responsible and able to distinguish right from wrong. He concluded the applicant's condition met the criteria set forth in AR 635-200, paragraph 5-17, for an administrative separation. 8. On 6 December 2005, the applicant was counseled by his first sergeant regarding the recommendation that the applicant be separated under the provisions of AR 635-200, paragraph 5-17, for other designated mental condition and that he be issued an honorable discharge. The applicant agreed with the counseling. This counseling was required by AR 635-200 and done in accordance with its provisions. 9. On 15 December 2005, the applicant received a medical examination. The examining doctor did not evaluate the applicant’s psychiatric conditions but deferred that to WAMC Inpatient Psychiatry’s evaluation. The examination found the applicant medically qualified for service. 10. On or about 3 January 2006, the company commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200, paragraph 5-17, based on his diagnosed cognitive disorder and adjustment disorder with mixed disturbance of emotions and conduct. The applicant was advised of his rights and of the separation procedures involved. The commander also informed the applicant he intended to recommend he receive an honorable discharge. 11. On 15 December 2005, the applicant underwent a separation medical examination. The DD Form 2808 (Report of Medical Examination) documenting this examination lists no disabling conditions that would have supported the applicant's processing through medical channels. 12. On 11 January 2006, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, its effects, of the rights available to him, and of the effect of any action he took to waive any of his rights. The applicant indicated he understood he would be given an honorable discharge and elected not to submit statements in his own behalf. 13. The immediate and intermediate commanders recommended approval of the applicant's separation under the provisions of Army Regulation 635-200, paragraph 5-17, with an honorable discharge certificate. 14. On 31January2006, a legal review of the applicant's separation packet was completed by an administrative law attorney who found the packet legally sufficient under the provisions of AR 635-200, paragraph 5-17. 15. The applicant's record does not contain a copy of the separation authority's final approval memorandum. However, his record does contain discharge orders and a DD Form 214 showing that he was honorably discharged on 24 February 2006 under the provisions of AR 635-200, paragraph 5-17, by reason of a condition, not a disability. The applicant had completed 1 year, 7 months, and 19 days of active duty service. 16. On 26 January 2008, the VA determined that the applicant's medical condition of "residuals of closed head injury, to include cognitive disorder and post concussive headaches (also claimed as PTSD)" was service connected and granted him a 30 percent service-connected disability effective the day following his discharge, 25 February 2006. 17. A Integrated Disability Evaluation System (IDES) psychiatrist at Winn Army Community Hospital, Fort Stewart, GA, reviewed the applicant’s case for the Office of the Surgeon General (OTSG) and provided an advisory opinion on 19 August 2016. A review of the applicant’s electronic medical records revealed the following notations: [The applicant] was placed on unit watch from 2 Nov through 5 Nov for passive Suicidal Ideation (SI) after he was seen crying following a meeting with his [first sergeant]. He was noted to be "despondent and wants to give up." The provider…recommend[ed] some form of separation due to [the applicant’s] poor decision making and apathy that appear[ed] to be secondary to his head injury. Recommend[ed] chapter 5-17. On 29 November, the same provider discussed the case with a neuropsychologist at [WRAMC] who agreed to reevaluate and process [the applicant] for [a medical evaluation board (MEB)]. However, the unit did not approve for [the applicant] to be sent to WRAMC. The advisory official opined that the applicant should have had an opportunity to process through the Physical Disability Evaluation System (PDES) and recommended the Board grant the applicant the opportunity to have his records corrected based on his behavioral health conditions. 18. The applicant was provided a copy of the advisory opinion for comment. He did not respond. REFERENCES: 1. AR 635-200, rapid revision date 6 September 2011, paragraph 5-17a(9), states, in part, “If PTSD, TBI, and/or other comorbid mental illness are significant contributing factors to a mental health diagnosis, the Soldier will not be processed for separation under this paragraph, but will be evaluated under the physical disability system in accordance with AR 635-40.” 2. AR 635-200, 6 June 2005 (in effect at the time of the applicant’s discharge on 24 February 2006), paragraph 5-17a, does not have the provision provided in 5-17a(9) published in the 6 September 2011 version of the regulation. Paragraph 5-17 (administrative discharge for other designated physical or mental conditions) in the 6 June 2005 edition states, in pertinent part: a. Commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (AR 635–40). b. When a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the soldier for a medical examination and/or mental status evaluation in accordance with AR 40–501 (Standards of Medical Fitness). 3. AR 40-501 defines medical fitness standards for retention and separation, including retirement. If a Soldier is found not to meet the physical standards of this regulation, they may be referred to the PDES to determine if they should be separated due to disability, retired due to disability, or returned to duty. DISCUSSION: 1. A review of the applicant’s separation documentation and AR 635-200, paragraph 5-17, in effect at the time of his discharge, shows that the applicant was properly discharged in accordance with the regulatory requirements at the time. It is noted that both the WAMC psychiatrist and psychologist recommended discharge under 5-17 and did not recommend him for evaluation through PDES. It is also noted that the separation physical likewise did not find reason to recommend the applicant for evaluation through PDES. 2. The provisions of AR 635-200, rapid revision date 6 September 2011, paragraph 5-17a(9), state that if “PTSD, TBI, and/or other comorbid mental illness are significant contributing factors to a mental health diagnosis, the Soldier will not be processed for separation under this paragraph, but will be evaluated under the physical disability system in accordance with AR 635-40.” These provisions were not published until after the applicant’s discharge on 24 February 2006. 3. AR 635-200, 6 June 2005 (in effect at the time of the applicant’s discharge on 24 February 2006), paragraph 5-17a, did require that, when a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation in accordance with AR 40–501. This was done and both the 82nd Airborne Division psychiatrist and psychologist that conducted the mental status evaluation and the medical doctor from Inpatient Psychiatry recommended separation under paragraph 5-17. The 82nd Airborne Division psychiatrist and psychologist also recommended that a medical board be considered. 4. An advisory opinion from an IDES psychiatrist shows the psychiatrist found the applicant should have been considered by PDES before a decision was made on his separation. The advisory official recommends, in effect, that the applicant be afforded processing through 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) AR20150007719 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150007719 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2