IN THE CASE OF: BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20170002856 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 IN THE CASE OF: BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20170002856 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. IN THE CASE OF: BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20170002856 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 records to show he received a medical discharge instead of an honorable discharge. 2. The applicant states he was honorably discharged from active duty on 1 February 2013. A few months after his discharge, the department of Veterans Affairs (VA) awarded him a 70 percent (%) disability rating for post-traumatic stress disorder (PTSD). a. On 28 September 2010, during his deployment, the vehicle he was driving was hit by a terrorist explosion or improvised explosive device (IED). His PTSD symptoms began right after this incident. The day after the explosion, he began to have nightmares and trouble sleeping. Shortly after this, he began experiencing more PTSD symptoms; like anxiety, flashbacks, hyper-vigilance, headaches, depression, lack of emotion, always wanting to be alone, and avoiding large crowds because they made him feel anxious, edgy, and uncomfortable. He also developed memory problems; he always misplaced things and constantly forgot important dates and appointments. b. His symptoms made it nearly impossible for him to perform his duties as a Soldier. He also suffers from social anxiety and does not have any friends because he isolated himself. Right after his separation things got worse. He had a difficult time adjusting to civilian life and to this day he still suffers from these symptoms; he sought help and visited doctors on multiple occasions. He did not receive the PTSD diagnosis until after his separation from the Army. 3. He provides: * Orders 063-720 with Roster, dated 4 March 2010 * Permanent Orders 221-001, dated 9 August 2010 * Casualty Report * Permanent Orders 320-30 and Purple Heart Certificate, dated 16 November 2010 * Medical Record documents dated from 28 September 2010 through 20 September 2012 * Enlisted Record Brief (ERB), dated 19 December 2012 * DD Forms 214 (Certificate of Release or Discharge from Active Duty) * VA Decision Rating, dated 31 March 2014 * Various VA forms and documents * four supporting statements 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 Regular Army (RA) on 3 July 2002. He completed training and he was awarded military occupational specialty (MOS) 63M (Bradley Fighting Vehicle System Maintainer). He served in Iraq from 13 February 2004 to 14 March 2005. He was honorably released from active duty of 2 July 2007 and credited with completing 5 years of active duty service. 3. On 24 November 2009, he again enlisted in the RA. He served in Afghanistan from 25 April 2010 to 1 March 2011. 4. The applicant's record is void of evidence that shows he had an unfitting condition at the time of discharge that would have required processing through the Physical Disability Evaluation System (PDES). 5. Permanent Orders 221-001, issued by Headquarters, 1st Brigade Combat Team, 10th Mountain Division, dated 9 August 2010, awarded him the Combat Action Badge for engaging in active ground combat on 12 June 2010. 6. Permanent Orders 320-30, issued by U.S. Forces Afghanistan, dated 16 November 2010, show he was awarded the Purple Heart for wounds received in action on 28 September 2010. 7. His DD Form 214 shows on 1 February 2013 he was honorably discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, due to completion of required active service. He had completed 3 years, 2 months, and 8 days of total active service this period. 8. On 6 August 2013, he enlisted in the U.S. Army Reserve for 3 years. 9. The applicant provides four supporting statements from two comrades and two family members who insist the applicant's personality and attitude changed after his last deployment to Afghanistan. His fellow comrades describe the applicant as a fun person to be around and a jokester prior to the IED incident; however, his mood changed dramatically after the incident. Both comrades maintain that after the incident the applicant seemed confused and disoriented. His spouse states she has been by the applicant's side through all of his deployments, but it was not until his last deployment that she noticed he was always agitated, withdrawn, and he suffered from nightmares. His brother states that after the applicant was discharged from the Army, he stayed with him for a few weeks and he noticed a great deal of changes in the applicant. He adds the applicant was no longer interested in going out in public places or being around large crowds. He was anxious and seemed to be on edge and withdrawn. 10. On 8 June 2017, the ABCMR obtained an advisory opinion from a psychologist at the Army Review Boards Agency (ARBA), who states the evidence provided does not support the applicant's request for a medical retirement. He states: a. During the applicant's service, he sustained a mild traumatic brain injury (TBI) in 2010 after his vehicle was "hit by an IED blast." Since his discharge from the RA, he has obtained a diagnosis of PTSD effective 2 February 2013 by the VA in a rating decision reached on 31 March 2014. He was awarded a 70% disability rating for PTSD. He has also offered letters from people who know him attesting to the presence of PTSD symptoms when he was still in the Army and subsequent to his Purple Heart wound. The applicant is contending his honorable discharge was inappropriate because he had undiagnosed PTSD and should have been medically retired instead. In the Joint Legacy Viewer (JLV) as of 8 June 2017, he is still rated 70%. He does not show, even since his award, as having treatment for PTSD or any other behavioral condition at the VA. b. During his active duty service, his Noncommission Officer Evaluation Reports (NCOERs) were satisfactory. In his electronic medical record (AHLTA), he showed an injury from a terrorist explosion, TBI. He was seen one time in a psychology clinic at Fort Drum, NY where he complained of insomnia, but he did not complain of nightmares. The visit occurred on 2 November 2012 and did not result in a diagnosis. There were two visits related to insomnia on 31 October 2012 and 2 November 2012 with a physician. The physician prescribed Trazodone to help the applicant sleep, and recommended a sleep study that appears not to have been done. c. The AHLTA records did NOT show the applicant describing symptoms, for whatever reason, that would have led to a PTSD diagnosis. Second, his functioning as a Soldier was satisfactory. He did not have any trouble with the Army physical fitness test (APFT) prior to his discharge from active duty service. However, it was noted in his last NCOER for the period 6 August 2015 to 4 August 2016 that he failed the APFT for the rating period. He offered an explanation in his packet that he had other duties that prevented him from getting enough exercise. Nothing at the time of his service would have justified a referral to a Medical Evaluation Board (MEB). Further, even if he had been diagnosed with PTSD, his level of functioning would not have required an MEB. His psychiatric profile was S1. Concerning the VA finding him 70% disabled the day after his discharge; it is not unusual for VA determinations of disability to differ from an Army determination. In addition, he made different representations regarding his symptoms than he did to the Army. The Army and the VA use different systems and they are governed by different rules and procedures when determining disability, a fact that is often frustrating to veterans. d. The applicant’s medical records at the time of his discharge do not reasonably support his having had a boardable medical condition for that period. He met the mental-health standards in Army Regulation (AR) 40-501 (Standards of Medical Fitness) and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation). His mental-health conditions were considered at the time of his discharge from the Army, even on 2 September 2013, he showed a S1 profile, which incidentally can be compatible with a diagnosis of PTSD (many active duty Soldiers have PTSD and continue to Solider). 11. On 11 July 2017, the applicant responded to the advisory opinion. He states while he was still on active duty he was suffering from PTSD, but did not realize it at the time. He recalls incidents that occurred in Afghanistan and his reaction to those incidents several months after they had occurred. He states he has a fear of large crowds and therefore, he no longer has a social life. He maintains he also has suicidal thoughts and he has been talking to a psychiatrist on a regular basis. He offers these PTSD symptoms have become a part of his life. He provides additional medical evidence to support his contention. 12. On 11 August 2017, after reviewing the applicant's statement and the additional medical information, the psychologist stated that none of the evidence provided refuted any of the argument for the conclusion he reached in his advisory. The record shows at the time of the applicant's discharge, he did not meet the medical retention decision points as evidenced by his NCOER and his reentry code (RE) of "1" listed on his discharge document. REFERENCES: 1. AR 40-501 provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 2. AR 635-40 establishes the Physical Disability Evaluation System (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 or her office, grade, rank, or rating. It provides for a medical evaluation board that is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3. 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 service. a. Paragraph 2-1 provides 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. 3. Title 38, U.S. Code, sections 1110 and 1131, 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 medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. DISCUSSION: 1. The applicant argues, in effect, that he should have been medically retired due to his medical condition of PTSD. 2. The ARBA psychologist indicated he did not suffer from a medically unfitting condition while on active duty. Although his records now reveal that he is in receipt of a 70% disability rating from the VA for service-connected PTSD, there is no evidence showing he had an unfitting condition while on active duty which required processing through the PDES. Further, the applicant's last NCOER and RE code of "1" indicates he was physically fit to reenter the Army, which he did on 6 August 2013. 3. The fact that the applicant was awarded a 70 percent disability rating from the VA is not a basis upon which to conclude that he should have been medically retired. The VA does not determine medical fitness for further military service. The VA 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, the applicant's medical conditions, although not considered medically unfitting for military service at the time of processing for discharge, qualify him for VA benefits based on an evaluation by that agency. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of discharge before a member may be medically retired or separated. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170002856 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170002856 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2