IN THE CASE OF: BOARD DATE: 9 January 2014 DOCKET NUMBER: AR20130006890 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, his release from active duty on 22 November 2004 be changed to a medical discharge. 2. The applicant states his superiors informed him they would get him medically discharged the quickest way possible. They informed him that waiting for a true medical evaluation board (MEB) would take years. He was rated as 60 percent disabled by the Department of Veterans Affairs (VA) at Sioux Falls, SD. 3. The applicant provides: * service medical records * his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 22 November 2004 * a letter, dated 5 November 2009, from the VA Regional Office (VARO), Phoenix, AZ 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 30 May 2003, he enlisted in the Regular Army for 4 years. He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman). He served in Iraq from 12 March to 13 April 2004. 3. He provided a DA Form 3349 (Physical Profile), dated 5 August 2004, placing him on profile for bipolar type II mood disorder, mood with extreme highs and lows. a. He was coded "F" from Table 7-2 of Army Regulation 40-501 (Standards of Medical Fitness) and under "S" (psychiatric) of the physical profile he was assigned the numerical designator "4." b. The profile indicated he needed an MEB/PEB (Physical Evaluation Board) to determine if: * he was able to carry and fire individual assigned weapon * he was able to move with a fighting load at least 2 miles * he was able to do 3-5 second rushes under direct and indirect fire * whether he was healthy without any medical condition that prevents deployment c. The profiling officer was a major in the Medical Corps, inpatient psychiatry, and the senior profiling officer/approving authority was a lieutenant colonel in the Medical Corps, Deputy Commander for Clinical Services. 4. He provided a DD Form 2697 (Report of Medical Assessment), signed by him on 15 September 2004. He indicated his overall health since his last medical assessment/physical examination was worse due to physical problems with recurring pains that restricted his movement and mental health problems. He indicated he was admitted to inpatient psychiatry for observation while he was under new medication. 5. He provided an undated DD Form 2808 (Report of Medical Examination). a. The purpose of the examination was indicated as "Medical Board." He checked "yes" in item 39 - Neurologic. Item 42 - Notes contains the annotation "#39 See Psychiatry Evaluation consult." There was no Psychiatry Evaluation available for review. b. Item 77 - Summary of Defects and Diagnoses contains the entry "Bipolar Type II mood disorder. Mood with extreme lows." c. The reviewing officer/approving authority in item 84a was a medical doctor, family practice. 6. He provided a DD Form 2807-1 (Report of Medical History), dated 15 September 2004. a. Item 29 - Explanation of "Yes" Answers contains comments on items 10-26 marked "Yes." (1) Items 21 (Have you ever been a patient in any type of hospital?) - he was hospitalized as a psychiatric inpatient 3-6 August 2004 (2) Item 24 (Have you consulted or been treated by clinics, physicians, healer, or other practitioners with the past 5 years for other than minor illnesses) - he was being treated for bipolar disorder, back pain (recurrence), leg injuries (was on crutches both times) (within the past 8-9 months). b. In item 30a - Examiner's Comments it is noted the applicant was hospitalized at Womack Army Medical Center and he was currently being following by Psychiatry. 7. He provided an Order Request for an MEB Consult for range of motion on his back and left knee. The provisional diagnosis was an MEB evaluation of pain complaints. His appointment date was 23 September 2004. The results of this consult are not available for review. 8. His separation package was not available for review. 9. On 22 November 2004, he was discharged by reason of a personality disorder. He completed 1 year, 5 months, and 23 days of active service that was characterized as honorable. 10. A review of the available records failed to show the applicant was evaluated through the Physical Disability Evaluation System (PDES). 11. He provided a letter from the VARO, Phoenix, AZ, dated 5 November 2009, certifying he was receiving service-connected disability compensation in the amount of $1,064.00 per month effective 1 December 2008 and his disability rating was 60 percent. The letter did not list his specific disabilities. 12. Army Regulation 40-501, in effect at the time, provided information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. a. Paragraph 3–32 (Mood disorders) states the following are causes for referral to an MEB: * Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization * Persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment * Persistence or recurrence of symptoms resulting in interference with effective military performance b. Chapter 7 (Physical Profiling) stated the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual. It is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. (1) Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. (2) Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). (3) Table 7-2, Profile Codes, shows that Code F states "Limitations prohibiting assignment or deployment to outside U.S. (OCONUS) areas where definitive medical care is not available." This code is assigned to individuals who require continued medical supervision with hospitalization or frequent outpatient visits for serious illness or injury. 13. Army Regulation 635-40 establishes the PDES and sets forth the 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. a. It states commanders of medical treatment facilities (MTFs) who are treating Soldiers may initiate action to evaluate the Soldier’s physical ability to perform the duties of his or her office, grade, rank, or rating. If the unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty the commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition. If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB. b. MEBs are 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 14. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. Paragraph 5-13 at the time stated a Soldier could be separated for personality disorder (as determined by medical authority), not amounting to disability under Army Regulation 635-40, that interfered with assignment to or performance of duty. a. This condition is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the soldier’s ability to perform duty. (Exceptions: combat exhaustion and other acute situational maladjustments.) The diagnosis of personality disorder must have been established by a psychiatrist or doctoral-level clinical psychologist with necessary and appropriate professional credentials who is privileged to conduct mental health evaluations for the DOD components. It is described in the Diagnostic and Statistical Manual (DSM-IV) of Mental Disorders, 4th edition. b. Separation because of personality disorder was authorized only if the diagnosis concluded that the disorder was so severe that the Soldier’s ability to function effectively in the military environment was significantly impaired. Separation for personality disorder was not appropriate when separation was warranted under chapters 4, 5, 7, 9, 10, 11, 13, 14, 15, or 18 of this regulation; Army Regulation 380–67 (Personnel Security Program); or Army Regulation 635–40. DISCUSSION AND CONCLUSIONS: 1. He had been receiving treatment for Bipolar Type II Mood Disorder and moods with extreme highs and lows. He was hospitalized in August 2004 due to a change in his medication. His profile for Bipolar Type II Mood Disorder showed his condition necessitated limitations of duty or duty in protected environment, thereby resulting in the interference with effective military performance. Both the psychiatrist placing him on profile and the doctor conducting his physical examination for "Medical Board" recommended he be referred to a MEB/PEB. 2. He clearly should have been referred for processing through the PDES. His condition warranted a referral to an MEB to determine if he met the standards for retention and possible referral to a PEB to determine fitness for duty. In order to determine if any of his conditions warrant a disability rating, he should be afforded the opportunity to be properly evaluated by appropriate medical personnel and systems designed to determine the degree of disability a Soldier may have prior to separation. 3. Accordingly, the Department of the Army Office of the Surgeon General (OTSG) should take appropriate action to issue the applicant invitational travel orders for the purpose of undergoing the appropriate medical processing and evaluations at an appropriate medical facility that has the capability to properly evaluate the applicant’s medical condition. 4. Once a determination has been made as to the appropriate disposition of the applicant’s medical condition under the PDES, the applicant will be separated in accordance with the applicable laws and regulations, with entitlement to all back severance pay and/or retired pay due him, if any. 5. In the event a determination is made that the applicant should have been separated under the PDES, these proceedings will serve as the authority to void his original discharge and to issue the appropriate separation retroactive to his original separation date. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____X___ ____X___ ___X__ _ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 the OTSG contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders to the applicant. a. In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. 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. 2. The Board further determined that 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 type of discharge without undergoing evaluation under the physical disability evaluation system. _______ _ 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. ABCMR Record of Proceedings (cont) AR20130006890 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130006890 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1