BOARD DATE: 6 June 2017 DOCKET NUMBER: AR20160004878 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 BOARD DATE: 6 June 2017 DOCKET NUMBER: AR20160004878 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. 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 his 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 to 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 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 reason for separation 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. BOARD DATE: 6 June 2017 DOCKET NUMBER: AR20160004878 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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his narrative reason for separation as "medical retirement" instead of "condition, not a disability." 2. The applicant states: a. His discharge was changed from a general discharge to honorable in July 2015; however, the Army Discharge Review Board (ADRB) did not find that he was able to be medically retired at that time. b. He is currently rated 100-percent disabled by the Department of Veterans Affairs (VA) due to his service-connected injuries. c. He was separated under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, due to post-traumatic stress disorder (PTSD) before his medical evaluation board (MEB). He believes his honorable discharge should qualify him for an Army medical retirement. d. All of his injuries are due his service in Iraq in 2005, causing an end to his military career, as well as future opportunities as a civilian. When he was discharged, his PTSD was characterized as a condition, not a disability, which is unjust. 3. The applicant provides: * DD Form 214 for the period ending on 12 December 2005 * a compact disc (CD) containing over 700 digital files from the VA Medical Center in Milwaukee, WI, from 2006 to present * VA Disability Compensation letter, dated 22 February 2016 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. On 7 January 2004, the applicant enlisted in the Regular Army. After his initial entry training, he was awarded military occupational specialty (MOS) 13M (Multiple Launch Rocket System/High-Mobility Artillery Rocket System (MLRS/HIMARS) Crew Member). 3. The evidence of record shows the applicant was awarded the Purple Heart on 2 April 2005 for wounds he received in Iraq. 4. The applicant received the following nonjudical punishments (NJPs) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ): a. on 9 August 2004, for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of 14 days of extra duty and restriction; and b. on 2 December 2004, for being absent without leave (AWOL) from 20 September 2004 until 19 October 2004. His punishment consisted of reduction to pay grade E-1, forfeiture of pay per month for 2 months (suspended), and 45 days of extra duty and restriction. 5. On 16 September 2005, the applicant received a Report of Behavioral Health Evaluation, which shows: a. Mental Status Examination: * Behavior – Normal * Level of Alertness – Fully Alert * Level of Orientation – Fully Oriented * Speech – Normal * Mood and Affect – Anxious * Thinking Process – Clear * Thought Content – Normal * Judgment – Fair * Impulse Control – Poor b. Diagnostic Findings: * Axis I – PTSD * Axis II – Deferred * Axis III – Shrapnel Wounds c. The examining health service psychologist noted the applicant had a psychiatric condition of PTSD that warranted an expeditious separation from the military. He further stated the applicant was not at imminent risk for harm to himself or to others, but was conditionally dangerous. He recommended a initiation of separation under the provisions of Army Regulation 635-200, paragraph 5-17, by the applicant's command. 6. On 13 October 2005, the applicant received another NJP for wrongfully communicating a threat. His punishment consisted of forfeiture of pay per month for 1 month (suspended) and 14 days of extra duty and restriction. 7. On 19 October 2005, the applicant's unit commander notified him of initiation of separation action under the provisions of Army Regulation 635-200, paragraph 5-17 (condition, not a disability), for a diagnosis of PTSD by competent medical authority. The unit commander recommended a general discharge under honorable conditions. 8. On 2 November 2005, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement in his own behalf. The unit commander subsequently recommended the applicant's separation from the Army and waived any further rehabilitative efforts. 9, On 2 November 2005, the separation authority directed the applicant's discharge with characterization of his service as general under honorable conditions. 10. On 12 December 2005, the applicant was discharged accordingly by reason of "condition, not a disability," with a separation code of "JFV." He completed 1 year, 11 months, and 6 days of net active service. 11. The applicant submitted a request to the ADRB for an upgrade of his general discharge and a change to his narrative reason for separation. On 10 July 2014, the ADRB granted the applicant partial relief by approving his request for an upgrade to an honorable discharge. However, his narrative reason for separation remained "condition, not a disability." 12. An advisory opinion from the Office of the Surgeon General (OTSG), dated 28 September 2016, recommends approval of the applicant's request, stating: a. The applicant sustained a shrapnel injury to his left leg in Iraq on 2 April 2005 and returned stateside to pursue a medical evaluation board (MEB). On 15 August 2005, he presented to the Behavioral Health Clinic that he reported flashbacks, nightmares, intrusive thoughts, anxiety, sadness, anger, and avoided crowds. He was diagnosed with PTSD and was referred for medication. He retained this diagnosis until his separation. b. A prior ADRB Docket Number AR20140008447, dated 10 July 2014, indicated that when the applicant returned from Iraq, he had problems with the rear detachment commander and received an Article 15 for communicating a threat. In an ALTHA note, dated 16 September 2005, his provider recommended that he avail himself of inpatient hospitalization both to avoid contact with command and "to address to PTSD symptoms more completely before being discharge." Later that day, the same psychologist stated he spoke with the applicant and the judge advocate general and agreed to write a DA Form 3822-R recommending discharge for mental health reasons in order to prevent a more harsh administrative separation in which the applicant may lose his benefits. c. The applicant was subsequently granted an 80-percent service-connected disability rating for PTSD by the VA and was later determined to be eligible for individual un-employability with a 100-percent disability rating. d. The evidence clearly indicated that the applicant was diagnosed with PTSD while still in service. His irritability and impulsivity are characteristic of PTSD and resulted in serious impairment in his occupational functioning that may well have fallen below medical retentions standards. Therefore, he should have been referred to an MEB for consideration for a medical discharge. 13. The applicant was provided a copy of the advisory opinion for an opportunity to respond. He did not respond. REFERENCES: 1. Army Regulation 635-200, 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, sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. 2. Army Regulation 635-5-1 (Separation Program Designator (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 the SPD of "JFV" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, paragraph 5-17, based on a physical condition, not a disability. 3. Title 10, U.S. Code, 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, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the physical disability evaluation system (PDES) 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 Army Regulation 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 service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES when they: * no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board * receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, Human Resources Command (HRC) c. The PDES assessment process involves two distinct stages: the MEB and the physical evaluation board (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. 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. d. The mere presence of 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. Army Regulation 635-40 establishes the Army PDES 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. 5. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals in paragraph 3–2. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of their duties or may compromise or aggravate the Soldier's health or well-being if they were to remain in the military Service. Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veterans Affairs Schedule for Rating Disabilities (VASRD). Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent. 6. Title 10, U.S. Code, 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, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent. DISCUSSION: 1. The applicant contends he should have been medically retired instead of discharged due to a condition, not a disability, based on his diagnosis of PTSD. 2. The evidence of record shows the applicant received a behavioral health evaluation in conjunction with administrative separation proceedings for his multiple NJPs. During his behavioral health evaluation, he was diagnosed with PTSD and the evaluating psychologist recommended his separation for a "condition, not a disability." 3. The applicant was accordingly separated with a general discharge on 12 December 2005 under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of a condition, not a disability. 4. Although the applicant's records clearly show a diagnosis of PTSD, the applicant was never given an opportunity to go before a MEB. 5. The OTSG advisory opinion states it is clear the applicant should have been referred to an MEB based on his medical diagnosis of PTSD at a level of severity not meeting retention standards. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004878 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004878 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2