BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150009189 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 BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150009189 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. BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150009189 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 her military records to show she was diagnosed with a combat related injury. 2. The applicant defers her statement and evidence to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests correction of the applicant's records to show she was medically retired due to combat injuries sustained in Iraq. 2. Counsel states the applicant was honorably discharged from the U.S. Army Reserve (USAR) in June 2011. She became aware of an injury sustained during combat in November 2014. She requests a change in record to reflect classification of post-traumatic stress disorder (PTSD) sustained while serving in a combat zone as determined by the Department of Veterans Affairs (VA) in November 2014 and that her discharge be "upgraded" to medical retirement. Counsel adds: a. The applicant was discharged from the USAR as an E-4 on 14 June 2011 having completed the enlistment obligation. Prior to her discharge, she served an active duty combat tour during Operating Iraqi Freedom (OIF) in Iraq. Her deployment to Iraq resulted in a physical injury and a psychological injury ultimately causing her to discharge from her position in the USAR. Though the record reflects just physical injuries, her injuries in Iraq were not limited to just a physical condition. b. Though her physical injury was documented in her medical records, it did not become clear that she had suffered a psychological injury until years later. This unfortunate malady only became clear after her VA treatment doctor, Dr. L. R. Me-- recognized that she was, in fact, suffering from PTSD in or around November 2014. He related this injury to her combat tour in Iraq. She had suffered for years without proper treatment. Had she been accurately assessed prior to discharge, those psychological injuries would have been treated and her suffering could have been alleviated. She should be medically retired from the Army. Her service was exemplary and she served honorably during OIF. c. She received the Iraq Campaign Medal with Campaign Star, Global War on Terrorism Service Medal, and National Defense Service Medal. Her entire record is exemplary and she has "no negative indication of her service"; however, that record does not accurately reflect her service. Her service record should annotate the PTSD injury she suffered in Iraq and should reflect a medical retirement. 3. Counsel provides: * 2008 DD Form 214 (Certificate of Release or Discharge from Active Duty) * 2014 VA Progress Notes * 2009 Medical Note and temporary medical profile * USAR Periodic Health Assessment * 2006 DD Form 214 * Certification of Military Service * Enlistment Contract with allied documents 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 USAR on 16 March 2006. She entered active duty for training (ADT) on 23 May 2006 and completed required training for award of military occupational specialty 31B (Military Police (MP)). 3. She was honorably released from ADT on 9 November 2006. Her DD Form 214 shows she completed 7 months and 25 days of active service. She was reassigned to the 160th MP Battalion, Tallahassee, FL. 4. On 8 March 2008, Headquarters, 81st Regional Readiness Command published orders reassigning her from her troop program unit (TPU), the 160th MP Battalion to another TPU, the 304th MP Battalion, Dahlonega, GA. 5. On 9 March 2008, Headquarters, 81st Regional Readiness Command published orders ordering her to active duty for a period of 346 days beginning on or about 5 April 2008 in support of OIF. 6. She entered active duty on 5 April 2008 and subsequently served in Kuwait/Iraq from 4 June 2008 to 8 November 2008. 7. The complete facts and circumstances of her discharge are not available for review. However, her records contain a DD Form 214 that shows she was released from active duty on 29 November 2008 under the provisions of paragraph 5-17, AR 635-200 (Personnel Separations – Enlisted Personnel) by reason of "condition, not a disability" and she was issued an honorable characterization of service. She was assigned separation program designator (SPD) code "JFV." She was awarded or authorized the: * Iraq Campaign Medal with campaign star * National Defense Service Medal * Global War on Terrorism Expeditionary Medal * Army Service Ribbon * Armed Forces Reserve Medal with "M" Device 8. On 11 September 2009, the Command Surgeon reviewed her medical records, including a Periodic Health Assessment, as part of a periodic review. The Command Surgeon found she met medical retention standards in accordance with chapter 3 of AR 40-501 (Standards of Medical Fitness). He noted her low back pain and issued her a physical profile for upper back pain and scoliosis. 9. Her discharge orders are not available for review; however, her record in the Soldier Management System shows she was involuntarily discharged from the USAR in June 2011 by reason of being medically unfit for retention. 10. The Board forwarded her available medical records medical documents to the Office of The Surgeon General (OTSG) for review. As a result, OTSG rendered an advisory opinion on 16 August 2016. The OTSG official stated: a. The applicant, an Army Reservist, entered active duty on 5 April 2008 and was honorably released from active duty on 29 November 2008 in accordance with AR 635-200, paragraph 5-17 (Condition, Not A Disability). She served in support of OIF from June to November 2008. She was discharged from the USAR on 14 June 2011. b. She requested that the Board grant her a medical retirement. OTSG was asked to determine (a) if applicant is eligible for a medical retirement based on PTSD; and (b) if PTSD was a factor in her separation from the military. This opinion is based on the information provided by the Board and records available in the DOD electronic medical record (AHLTA). c. In June 2010, she was evaluated for adjustment disorder secondary to a medical condition by a Medical Board (MEB) which determined the need for clarification by the VA. In October 2010, the VA diagnosed her with adjustment disorder with anxiety, directly related to her chronic back pain, and meeting medical retention standards. Despite the MEB conclusion that she did not meet medical retention standards for back and spine conditions, there is no documentation that the case was forwarded to a Physical Evaluation Board (PEB), nor is there an explanation of her reason for separation, i.e., condition, not a disability. d. She provided an administrative note from her psychologist at the VA stating that he has been treating her since 15 July 2014 for PTSD resulting from her military service. However, neither the Army nor the VA evaluation at the time of her discharge noted the presence of a behavioral health condition other than adjustment disorder related to chronic pain. There is no description of a precipitating stressor other than pain and no service-connected disability rating from the VA. Therefore, the advisory official opines that she is not eligible for a medical retirement based on PTSD, and PTSD was not a factor in her separation 11. The applicant was provided with a copy of this advisory opinion. She responded via her counsel who stated: a. OTSG concluded that the applicant is not eligible for medical retirement based on PTSD because no documentation was forwarded to the PEB regarding a diagnosis of PTSD nor does the PEB explain that her separation is due to a condition, not a disability. In June 2010, she was evaluated by the PEB; however, she was not diagnosed with PTSD until July 2014, four years later. She had not completed her psychological evaluations and treatment for her mental health prior to the conclusion of the PEB. Although she was diagnosed with an adjustment disorder during the PEB process, she received a second opinion from a psychologist that was inconsistent with the opinion of the prior evaluation. b. Equally experienced and competent health care professionals have conflicting opinions regularly and to choose one over another solely on the date it was opined verses the validity is a disservice to not only her, but anyone else who is measured by the same standard while trying to correct an injustice. c. OTSG concluded that PTSD was not a factor in her separation because there is no description of stressors nor a service-connected disability rating from the VA. One of the primary factors used in determining if an individual is suffering from PTSD is determining if an individual directly experienced a traumatic event. She was assigned to the Army detention facility at Camp Bucca, Iraq. The likely potential for death or serious bodily injury existed every day not only from the insurgents outside the perimeter of Camp Bucca, but also the detained individuals with whom she was charged to supervise. To decide that because she has an injury, her mental health issues are absolutely due to chronic pain is the same injustice that is cited in adopting the first opinion regarding her date of diagnosis mentioned previously. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 5-17 states commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability which is sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. 2. AR 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. It identifies SPD code JFV as the appropriate code to assign to enlisted Soldiers who are administratively discharged under the provisions of AR 635-200, paragraph 5-17, based on a condition, not a disability. 3. Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Physical Disability Evaluation System and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. The objectives of the system are to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of disability, and provide prompt disability processing while ensuring the rights and interests of the government and the Soldier are protected. b. Soldiers are referred into the disability system when they no longer meet medical retention standards in accordance with AR 40-501, chapter 3, as evidenced in a medical evaluation board, or when they are command-referred for a fitness-for-duty medical examination, and/or in other circumstances. c. The disability assessment process involves two distinct stages: The MEB and the PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. d. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. e. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. AR 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Paragraph 3-3a provided that performance of duty despite an impairment would be considered presumptive evidence of physical fitness. Paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating. 5. Title 10, USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. Title 38, USC, 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 an error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. 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. DISCUSSION: 1. The complete facts and circumstances surrounding the applicant's discharge are not available for review with this case. The available evidence shows she was released from active duty on 29 November 2008 under the provisions of AR 635-200, paragraph 5-17, by reason of "Physical Condition, Not a Disability" with a general characterization of service and SPD code "JFV." She was later discharged from the USAR by reason of being medically unfit for retention. 2. In the absence of evidence to the contrary, it is presumed the applicant's separation processing was conducted in accordance with the governing regulation in effect at the time. 3. She contends she should have been medically retired due to PTSD. In order to be separated for disability, the Army has a process that begins with entry into the disability system. In the applicant's case, there is no evidence to show that, prior to her discharge, she had PTSD symptoms that rose to a level that would have warranted referral to the disability evaluation system. 4. She also appears to believe that since another agency has diagnosed her with PTSD, the Army, in effect, should have done the same. a. The Army and VA disability evaluation systems are independent of one another. A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. b. The VA may award ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability. The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating. c. If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the disability system Only those conditions that render a member unfit for continued military service at the time of separation will be rated. However, the VA could potentially rate all service-connected conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009189 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009189 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2