BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20150012474 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: 20 December 2016 DOCKET NUMBER: AR20150012474 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: 20 December 2016 DOCKET NUMBER: AR20150012474 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, reconsideration of his request to have his physical disability discharge with severance pay changed to physical disability retirement. 2. The applicant states he should have been medically retired because of post-traumatic stress disorder (PTSD). He also states: a. He provided 42 pages of medical documents that prove he was seen by multiple psychiatrists within 1 year of his discharge. These documents are from several Department of Veterans Affairs (VA) hospitals in Ohio. He received medication from the VA for depression, PTSD, and anxiety before he was discharged. b. He was in a 9-week treatment program for PTSD within a year of his separation from the military. c. Page 35 of the submitted medical documents relate that his cognitive difficulties were difficult to determine; however, there were multiple contributing factors including sleep problems, anxiety, PTSD, and heavy alcohol abuse as well as his history of three concussions while in Iraq. d. The VA documents show he was seeking all the medical help he could get. e. The Physical Evaluation Board (PEB) Liaison Officer (PEBLO) was preparing for her own retirement and did not take time explain things as well as one might have expected. 3. The applicant provides 42 pages of recent VA medical records. Additionally, he provides service and VA records created between 2008 and 2011, including his Medical Evaluation Board (MEB) and PEB documents. 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) in Docket Number AR20110024315 on 8 November 2012. 2. In 2015 the applicant requested a review of his case by the Department of Defense Physical Disability Review Board. The Deputy Assistant Secretary of the Army (Review Boards) notified him that he was not eligible for such review because the ABCMR had already acted on his case; however, as an exception to policy, he was permitted to request reconsideration by the ABCMR. 3. The applicant, a member of the Ohio Army National Guard (OHARNG), was mobilized with his unit and served in Iraq from 6 January to 27 December 2005 as a combat engineer. He was awarded the Combat Action Badge and Valorous Unit Award. He received the Purple Heart for an improvised explosive device (IED) incurred injury on 29 July 2005. 4. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was released from active duty on 1 February 2006 and reverted to the OHARNG. A National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he continued to serve in the OHARNG until 15 July 2009, when he was transferred to the U.S. Army Reserve Control Group (Reinforcement) upon the completion of his Selected Reserve commitment. However, Orders D#152-02, issued by the U.S. Army Physical Disability Agency on 1 June 2009, show he was discharged for disability with severance pay effective 5 July 2009. 5. Records of his disability separation processing show that on 17 April 2009 a MEB found: a. The applicant had medically unacceptable conditions of: * cognitive disorder, not otherwise specified * left knee patellofemoral chondromalacia, symptomatica * post-concussive headaches b. The applicant met retention standards for: * depressive disorder, not otherwise specified * mild hearing loss * hyperuricemia c. An accompanying psychiatric service evaluation states: * he had a permanent profile for being unfit for duty due to headaches and traumatic brain injury * he does not meet the criteria for PTSD symptoms, but appeared to have some underlying anxiety and depressive symptoms which he (the psychiatrist) called depressive disorder, not otherwise specified * the depressive symptoms certainly were not disabling from a military or an occupational standpoint, but certainly contributed to some of his headaches which had worsened to some degree since his return from deployment and since his stressors increased, which was common * he did not want to stay in the military * the psychiatrist recommended that the neuropsychological testing along with his PTSD Checklist - Military Version and Beck Depression Inventory be added to his MEB which found him to be in moderate depression and below the threshold for PTSD d. The applicant agreed with the findings and recommendations of the MEB. 6. An informal PEB considered the case on 6 May 2009. a. The PEB found the applicant was unfit for continued military service due to: * cognitive disorder resulting from head trauma while deployed to Iraq * residuals of traumatic injury left knee, evaluated as degenerative arthritis b. The PEB found the other conditions listed by the MEB were not unfitting and not ratable. c. The PEB recommended a combined disability rating of 20 percent and separation with disability severance pay. d. The applicant concurred with the PEB findings and recommendation and waived a formal hearing of his case. The PEB's findings and recommendation were approved. 7. During the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency's medical advisory staff. A clinical psychologist reviewed the entire case, including the applicant's latest submissions. The VA disability ratings for PTSD were noted. This included the fact that, while the applicant was engaged in the Army's disability rating process, he was concurrently rated at 30 percent for PTSD by the VA. Notwithstanding the VA rating, there was no available evidence that PTSD impacted the applicant's abilities to perform his military duties. Therefore, no basis was found to conclude the applicant should have been rated for PTSD by the PEB. 8. The advisory opinion was provided to the applicant for his consideration and response. He responded by stating that he was submitting 42 pages of VA medical records that showed he was seen by multiple psychiatrists within 1 year of his discharge. He also states: a. Within a year he was in a 9-week residential program for PTSD, because his PTSD was so severe and his drinking was out of control. b. Before his discharge he saw one psychiatrist and he did not trust her enough to open up ?he was told by multiple doctors that he should continue his appointments through the VA hospitals. c. He notes that page 39 of the currently submitted documents states "the exact cause[s] of his cogitative difficulties were difficult to determine, however, there are multiple contributing factors including sleep problems, anxiety, PTSD, and heavy alcohol abuse, as well as the patient's history of three concussions while in the Iraq war." d. There is clear evidence from multiple psychiatrists that (indicate he suffered from) PTSD. e. The PEBLO was preparing to retire and didn't take time to thoroughly explain things. REFERENCES: 1. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made the PEB uses the (Veterans Administration for Rating Disabilities (VASRD) to rate unfitting disabilities. Department of Defense Instructions 1332.39 and Army Regulation 635-40, Appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions. Ratings can range from 0 to 100%, rising in increments of 10%. 2. Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered militarily unfitting, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. DISCUSSION: 1. The available evidence does not show that PTSD adversely impacted his performance of military duties. During the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency's medical advisory staff (a clinical psychologist). The applicant’s entire case including his latest submissions were considered and no basis was found to conclude the applicant should have been medically retired due to PTSD. 2. The fact that the VA, in its discretion, has awarded the applicant a higher disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012474 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012474 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2