BOARD DATE: 21 September 2017 DOCKET NUMBER: AR20160003196 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: 21 September 2017 DOCKET NUMBER: AR20160003196 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140018596 on 9 July 2015. ______________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: 21 September 2017 DOCKET NUMBER: AR20160003196 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 reconsideration of his earlier request for correction of his records to show he was medically discharged vice honorably discharged due to unsatisfactory performance. He further requests his separation code be changed and a personal hearing. 2. The applicant states: a. In the previous Record of Proceedings, the Board stated in the "Discussion and Conclusions" that he had been diagnosed with carpal tunnel post service. This is not the case. He provides records from Fayetteville Neurology Associates which clearly state carpal tunnel syndrome affecting the median nerve in his right hand and mild nerve compression in his left hand were diagnosed during service. b. The Board also stated that attention deficit hyperactivity disorder (ADHD) had been diagnosed post service. His records clearly indicate that he saw a mental evaluation doctor throughout his service, especially when he started experiencing patterns of minor misconduct. He would like to add that evidence shows that he made every effort to see the doctor and understand what was going on with him. He clearly communicated the challenges he was facing which very well relate to ADHD but since he was not a doctor, he could not diagnose himself or understand that the challenge he was facing was ADHD. Correctly diagnosing it was not in his potential. c. On 22 April 2010, he went to the mental health clinic because he had adjustment issues with his roommates and he also had a hard time understanding concepts during his advanced individual training (AIT) classes. He has enclosed a letter from Mr. Re___ to Sergeant First Class (SFC) Yo__ requesting accommodations for him so that he could concentrate on his work and classes. d. He cannot emphasize enough the numerous counseling statements he received for forgetfulness, carelessness, and lack of attention to detail, which are related to ADHD. He provides these counseling statements for consideration by the Board. e. On 22 April 2010, records indicate that he visited Nelson Medical Clinic and saw Dr. Mi___ Su___ with a chief complaint of sleep problems. Additionally, he reported decreased attention span and an inability to focus. He states this problem occurs irrespective of him getting a full night's sleep. f. If the Board members were to further read the medical record, they will acknowledge that the doctor had ordered Wellbutrin, generic Bupropion which is supposed to improve his ability to focus, his attention span and it also has a minor stimulant effect. g. He wanted to be a psychological operations Soldier. He volunteered to be a part of special operations. He was in an administrative role and was managing the role. But the decision was to chapter him out. He repeatedly requested to stay in the same unit as his performance had improved and he believed he could be a performing Soldier if he stayed in the same unit. He requests and pleads to at least be given a hearing, and if not, then change his separation code so that he could take the necessary medicines and perform and fulfill his dreams and goals to serve the Army with satisfactory performance and beyond if possible. 3. The applicant also states that in addition to the previously-submitted evidence, he now provides additional evidence consisting of: a. Record of carpal tunnel which was discovered during service to the Army and not post service. b. Records supporting diagnosis of depression which was also diagnosed during his service and not post service. c. Record of issues with his feet which led him to a military profile. This in turn affected his performance and limited his physical movements. d. It is also stated in the medical record that there is tenderness to palpation along the plantar surface of both heels and along the inferior edge of the arch and at the base of the great toe of the plantar surface. This was documented during his service as a part of his lower extremity exam. e. The records from Fayetteville Foot and Ankle Center state that "X Ray taken today reveal no evidence of acute fracture, however there is some evidence of osteophytic spurring noted on the tibial sesamoid of the right sub-metatarsal one area, which is patient's area of primary pain on the right foot." 4. The applicant provides: * Enlisted Record Brief (previously available) * Reissued DD Form 214 (Certificate of Release or Discharge from Active Duty) (previously available) * Neurological Consultation, dated 30 March 2011 (previously submitted) * Patient Lab Inquiry, dated 31 March 2011 (previously submitted) * EMG/Nerve Conductive Velocity Report, dated 11 April 2011 (previously submitted) * Chronological Record of Medical Care, dated 22 April 2010 (previously available) * Psychiatry letter, dated 24 December 2012 (previously submitted) * Letter from Dr. Re___ to SFC Yo___ (previously submitted) * Medical document from Fayetteville Foot and Ankle Center (previously submitted) * Counseling statements (previously available) 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 AR20140018596, on 9 July 2015. 2. The applicant provides a new argument that was not previously considered by the Board. This new argument warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 11 January 2010 and he held military occupational specialty 91A (M-1 Abrams Tank Systems Maintainer). He was assigned to Headquarters and Support Company, 5th Military Information Support Battalion (Airborne), Fort Bragg, NC. 4. His records contain a history of negative counseling for various infractions, including: * multiple instances of missing morning accountability formations * multiple instances of being late to physical training (PT) formations * failing to show up on time for training * multiple instances of failing to adhere to the uniform regulation * failing to shave and/or have a military haircut * multiple instances of failing to be in the correct uniform * failing to display the proper rank insignia * failing to show up for maintenance on time * failing to complete assigned task and failing to uphold Army values * failing to clear billeting * failing the Army Physical Fitness Test (APFT) * failing to complete corrective training 5. On 4 February 2011, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for three instances of failing to go at the time prescribed to his appointed place of duty and one instance of failing to obey a lawful order. 6. On 21 April 2011, the applicant's immediate commander advised the applicant of his intent to initiate separation action against him under the provisions of chapter 13 of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) for unsatisfactory performance. The immediate commander stated that despite repeated counseling, the applicant was unable to perform his required duties. The commander cited the applicant's continued failure to report to his appointed place of duty, failing the APFT, failing to report in the proper uniform, plagiarism on a corrective training essay, and overall unsatisfactory performance. 7.  On 21 April 2011, the applicant acknowledged notification of the proposed separation action and acknowledged that he had been advised of his right to consult with counsel prior to submitting his elections of rights. He elected to submit a statement on his own behalf. He stated: * he spoke six languages and had an advanced college degree * he was emotionally and physically abused by other Soldiers; Soldiers threatened to kill him * he was not as athletic as the Army liked him to be; however, he was a great psychological operations Soldier * he knew he had been in trouble but the counseling clearly showed careless mistakes * he wanted a second chance to prove his love of country and Army 8. Subsequent to the applicant's acknowledgement, the applicant's immediate commander initiated separation action against him under the provisions of chapter 13 of AR 635-200 due to unsatisfactory performance. The commander indicated that the applicant had been counseled multiple times but he refuses to attend airborne training and deploy though he wanted to remain in the unit. He does not possess the mental capabilities to be a Soldier as shown by his multiple emotional outbursts. 9. On 17 May 2011, the immediate commander further re-notified the applicant by memorandum of the initiation of separation action against him. The applicant again indicated he did not wish to consult with counsel. 10. The separation authority reviewed the separation action; waived further rehabilitation requirements; approved the applicant's discharge under the provisions of AR 635-200, chapter 13; and directed that his service be characterized as under honorable conditions with issuance of a General Discharge Certificate. On 10 June 2011, the applicant was discharged accordingly. 11.  His DD Form 214 shows he was discharged under the provisions of chapter 13 of AR 635-200, due to unsatisfactory performance, with an under honorable conditions (general) characterization of service. He completed 1 year and 5 months of creditable active military service. He was assigned separation code "JHJ" and a reentry (RE) code of 3. He was awarded or authorized the: * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon 12. On 13 November 2013, during a personal appearance hearing, the Army Discharge Review Board (ADRB) reviewed his discharge and determined his characterization of service was too harsh based on the circumstances surrounding his discharge and as a result, inequitable. The ADRB voted to grant him relief in the form of an upgrade to his characterization of service to honorable. The ADRB also determined the reason for his discharge was proper and voted not to change it. 13. The applicant's original DD Form 214 was voided. He was reissued a new DD Form 214 showing he was honorably discharged under the provisions of chapter 13 of AR 635-200, due to unsatisfactory performance. His separation code remained "JHJ" and his RE code remained a 3. 14. The Case Management Division (CMD) of the Army Review Boards Agency (ARBA) forwarded his complete case and evidence to the ARBA Senior Medical Advisor for review. The ARBA Senior Medical Advisor rendered an advisory opinion on 21 February 2017. a. He restates the applicant's request for a discharge due to his various medical conditions. On 2 September 2009, the applicant completed a DA Form 2807-1 (Report of Medical History), wherein he indicated he had no known medical conditions. He was examined by a medical doctor who completed DD Form 2808 (Report of Medical Examination) and stated the applicant was qualified for service with no profile restrictions. The only entry was for skin pigmentation – birth marks. b. A review of the applicant’s military electronic medical record revealed clinical encounters from January 2010 through June 2011. (1) Radiology reports and laboratory results were normal or unremarkable. (2) The first behavioral health encounter was on 22 April 2010 when the applicant was in a trainee status. He was seen for anxiety and occupational problems. His Global Assessment of Function (GAF) score was 65 [Diagnostic and Statistical Manual of Mental Disorders (DSM)-VI GAF Range 61 to 70 – depressed mood and mild insomnia (mild symptoms) or some difficulty in social, occupational, or school functioning, but generally functioning well ] He was prescribed Wellbutrin (bupropion), however he never refilled the prescription. (3) The second behavioral health visit was on 27 September 2010 when the applicant appeared as a walk-in to the clinic because he was "having hard time at his unit." The behavioral health provider's impression was the applicant had an adjustment disorder. (4) The third behavioral health visit was on 9 November 2010 to "talk about my worries." The applicant felt he was being singled out by his supervisor because of his ethnicity (India) and having a (physical) profile. He was very upset with his unit about how he was being treated. He indicated he did not want to start medication. (5) The fourth behavioral health visit was on 4 January 2011 because he was feeling depressed: "SM [service member] reports he is constantly harassed by his coworkers. SM reported they make fun of him for being on profile and because his wife is significantly older than him (note: spouse is ~20 years older)." The applicant also stated his legs move a lot in his sleep. (6) The fifth behavioral health visit was on 1 February 2011, after the applicant had gone to the emergency room overnight for suicidal ideation. He had received an Article 15 for failure to report: "SM notes his Article 15 may be a way of his unit getting back to him for filing an IG [Inspector General] complaint. SM reports IG is investigating his complaints of harassment and others in his unit are aware of this and are criticizing him for this." He was prescribed medication for sleep and an anxiolytic (inhibits anxiety). He refilled his medications on 14 February 2011 and followed with psychiatry/psychology on 24 February 2011 wherein the medical impression was he had an adjustment disorder. The providers recommended he continue with his medications. In addition, the applicant was seeing a civilian (off post) counselor weekly. c. A MEDCOM Form 4038 (Report of Mental Status Evaluation), dated 24 February 2011, was unremarkable (mildly dysphoric) with Axis I – occupational problem; Axis II – deferred; Axis III – see electronic record. The applicant was screened for post-traumatic stress disorder (PTSD) and mild traumatic brain injury. The findings were negative for PTSD and TBI. The behavioral health provider psychologically cleared the applicant (presumably for administrative separation processing). d. A second DD Form 2807-1 was completed on 2 March 2011, with medications/supplements noted and the applicant provided several "yes" responses for bronchitis, tooth trouble, arthritis, joints/knee pain, back pain, nervous trouble/ sleep/counseling/worry/attempted-suicide and others. A medical provider reviewed with the applicant his medical history and noted the applicant was hospitalized for mental health on 15 February 2011 for one day (overnight). e. DD Form 2697 (Report of Medical Assessment), dated 2 March 2011, shows several "yes" annotations and this form was also reviewed with a medical provider. A medical examination was completed and the results recorded on DD Form 2808. He was examined for the purpose of an administrative separation from the Army. The clinical evaluation was unremarkable and the following medical conditions were noted: vision, anxiety disorder, insomnia, chronic low back pain, right/left foot pain. He received a temporary profile of PULHES – 113111. [A physical profile, as reflected on a DA Form 3349 (Physical Profile), is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary.] f. A behavioral health follow-up on 15 March 2011 shows the applicant's diagnosis was changed from adjustment disorder to depression and an antidepressant medication was added. The provider noted the applicant continued to attend weekly off-post counseling sessions. g. A neurology consult on 20 March 2011 for his leg movement problem shows he was assessed with possible restless leg syndrome by history (questionable neuropathy of the lower extremity), headaches (cause not known), and suspected carpal tunnel syndrome bilateral. h. The record shows podiatry visits in January, February, and March 2011 for biomechanical imbalance and treatment of sesamoiditis (chronic bilaterally, right greater than left, especially the tibial sesamoid right foot/degenerative joint disease changes) and onychocryptosis bilateral hallux collateral nail borders. i. A computerized tomography (CT) scan of his brain without contrast was done on 30 March 2011. The results of the CT scan were normal. j. The record shows a behavioral health visit on 11 April 2011 for follow-up of depression, and medication refilled including Prazosin for nightmares. k. A nerve conduction velocity study was done on 11 April 2011 to evaluate the numbness and tingling of both his hands and wrist pain, with nerve study showing evidence of moderate median nerve compression at the wrist on the right side; mild median nerve compression at the wrist on the left side; no evidence of ulnar nerve compression at the elbows. He was advised to use carpal tunnel splints for his wrist problems. l. The record shows a behavioral health follow-up encounter on 27 March 2011 [sic] with Prazosin not helpful (discontinued), continued on other medications; anxiety over being chaptered out of the Army and his transition back into civilian life. m. The applicant was seen by behavioral health providers on 9 May, 31 May and 1 June 2011 prior to his separation. His medications were refilled. His diagnosis remained adjustment disorder. n. A Department of Veterans Affairs (VA) rating decision, dated 23 April 2014, was reviewed. He received service-connected disability ratings for carpal tunnel (right) at 10 percent and carpal tunnel (left) at 10 percent. The VA denied service connection for plantar fasciitis, depression, and ADHD inattentive type o. A limited review of VA records through the Joint Legacy Viewer shows 18 problems listed with no VA entered problems, and only one VA prescription for naproxen. He was not prescribed behavioral health medications by the VA. Currently (2017), the applicant is service connected with a combined VA rating of 80 percent. p. The ADRB granted relief and upgraded his discharge to honorable. He applied to the ABCMR which subsequently denied relief. He requested a change of reason for separation to "medical issue" because he felt he developed carpal tunnel syndrome while on active duty and also suffers from ADHD and depression. He claims these conditions were factors that caused his performance to be unsatisfactory. q. Based on a thorough review, the medical advisor concluded that the available record does not reasonably support PTSD or another boardable behavioral health condition existing at the time of the applicant's military service. Primarily, the applicant had adjustment disorder with anxiety and some early depression symptoms treated with an anxiolytic, sleep aid, and antidepressant (briefly before separation). This condition did not fail medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness), thus there was no requirement to process him through the physical disability evaluation system. r. The applicant met medical retention standards for anxiety and depression symptoms, foot pain/strain/sesamoiditis, dermatophytosis, backache/lumbago, knee sprain/pain, hip pain, elbow pain, carpal tunnel syndrome (both hands)/wrist-hand numbness/tingling, restless leg syndrome, and/or cough/bronchitis in accordance with chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation). s. The applicant’s medical conditions were duly considered during separation processing. No diagnosis or symptomatology consistent with ADHD (inattentive type) was reported or noted during multiple mental health evaluations. (Of note, prior to enlisting the applicant successfully completed a Master's Degree program in Business Administration). A review of the available documentation found no evidence of a medical disability or condition which would support entry into the physical disability evaluation system. 14. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. REFERENCES: 1. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly brought before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. A general or honorable discharge was considered appropriate. 3. AR 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The SPD code of "JHJ" is the correct code to be assigned to Soldiers separating under chapter 13 of AR 635-200 by reason of unsatisfactory performance. 4. AR 635-40 establishes the Army disability system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those that contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. The regulation in effect at the time stated in paragraph 3-1 that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. b. Paragraph 3-2 states it is presumed a Soldier was in sound physical and mental condition upon entering active service except for the physical disabilities noted and recorded at the time of entry. Any disease or injury discovered after a Soldier entered active service, with the exception of congenital and hereditary conditions, was not due to the Soldier's intentional misconduct or willful neglect and was incurred in the line of duty. c. Paragraph 3b states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duties commensurate with his or her rank or grade until the Soldier is scheduled for separation creates a presumption that the Soldier is fit. 5. AR 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation. a. Chapter 2 (Physical Standards for Enlistment, Appointment and Inductions) provides that attention deficit disorder and ADHD is disqualifying for entrance into military service unless the applicant can demonstrate passing academic performance and no medications were prescribed (prior to entry) for the previous 12 months. b. Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below acceptable physical standards. For anxiety, somatoform, dissociative disorders and mood disorders (depression) a Soldier can be referred to a medical evaluation board if the medical condition(s) require extended or recurrent hospitalization, limitation of duty or duty in a protected environment or interfere with effective military performance. Situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duties. For the lower extremities, a referral to a medical evaluation board is required for Soldiers with amputations. 6. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. 2. The evidence of record shows the applicant displayed a pattern of unsatisfactory performance and did not respond to counseling by his chain of command regarding his responsibility to meet Army standards. Accordingly, his immediate commander initiated separation action against him for unsatisfactory performance. 3. His separation appears to have been accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. 4. The ADRB determined the characterization of his service was too harsh based on the circumstances surrounding his discharge and as a result, inequitable. The ADRB voted to grant him relief in the form of an upgrade to his characterization of service to honorable. The ADRB also determined the reason for his discharge was proper and voted not to change it. 5. His narrative reason for separation was assigned based on the fact that he was discharged under the provisions of chapter 13 of AR 635-200 due to his unsatisfactory performance. Absent his unsatisfactory performance, there was no fundamental reason to process him for separation. The only valid narrative reason for separation permitted under this paragraph is "Unsatisfactory Performance" and the appropriate separation code associated with this type of discharge is "JHJ." 6. A review of the applicant's military medical records, VA records and medical evidence provided by the applicant by an Army medical doctor concluded that: a. The applicant met medical retention standards for anxiety and depression symptoms, foot pain/strain/sesamoiditis, dermatophytosis, backache/lumbago, knee sprain/pain, hip pain, elbow pain, carpal tunnel syndrome/wrist-hand numbness/tingling (both arms), restless leg syndrome, and/or cough/bronchitis in accordance with chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant’s era of service. b. The applicant’s medical conditions were duly considered during medical separation processing. No diagnosis or symptomatology consistent with ADHD (inattentive type) was reported or noted during multiple mental health evaluations. The applicant was treated for adjustment disorder which by regulation does not render him unfit because of physical disability, but may be the basis for administrative separation. Of note, the applicant stated he spoke multiple languages and completed a Master's degree. c. His behavioral health diagnosis was changed from adjustment disorder to depression on 15 March 2011 prior to his separation. However, there were no extended hospitalizations for any mental health disorder which would have required a review by a medical evaluation board. d. A review of the available documentation, to include the new evidence provided by the applicant, found no evidence to support his entry into the physical disability evaluation system and subsequent medical evaluation board. By regulation the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003196 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003196 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2