BOARD DATE: 14 January 2016 DOCKET NUMBER: AR20140013614 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, a change of his narrative reason for separation to show he was medically retired, placement on the Temporary Disability Retired List (TDRL), and a restoration of his rank/grade to sergeant (SGT)/E-5. 2. The applicant states, in effect, there are supplemental documents and lay statements supporting that prior to his arrival at Fort Bragg, NC, he was an exceptional Soldier, combat veteran, and a Purple Heart recipient. However, upon arrival at his new duty station his (physical) health and mental health declined to the point of a suicide attempt after inconsistent and spotty treatment made available at mental and behavioral health. In addition, there were administrative errors and inconsistent application of all required Army Regulations and Directives, which included: * the Medical Treatment Facility (MTF) changing his documented Post Traumatic Stress Disorder (PTSD) diagnosis to Personality Disorder * the MTF failing to follow regulatory requirements to have the appropriate medical authority confirm or deny a PTSD or Personality Disorder diagnosis * his chain of command refusing a civilian treatment evaluation which supported that his misconduct was directly related to PTSD * his chain of command failing to refer him to either a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) 3. The applicant provides medical records, letters of support, correspondence, and separation documents which are listed on the attached index. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 8 January 2007. During his period of service: * he held military occupational specialties 11B (Infantryman) and 12N (Horizontal Construction Engineer) * the highest rank he held was SGT * he was deployed to Iraq from 12 November 2008 through 2 November 2009 * he was awarded the Purple Heart and Combat Action Badge 2. His disciplinary record includes negative performance counseling for failing to report in the proper uniform, failing to report to formation, and a written reprimand for using racial slurs. 3. On 9 December 2013, the applicant underwent a command directed behavioral health evaluation which found the applicant was: a. possibly non-deployable due to prescribed medications. b. screened for PTSD and Traumatic Brain Injury (TBI) which was either not present, or if present, did not meet the requirement for referral to a MEB. c. diagnosed with anxiety disorder not otherwise specified, by history, personality features (anti-social and borderline traits), and asthma. 4. The applicant’s commander was informed of the following recommendations and they were also discussed telephonically: a. The applicant was recommended for individual behavioral health care, marital counseling, and medication management. He reported having recently physically assaulted a motorist while riding his motorcycle. The commander was also informed safety precautions should be taken to monitor any future escalation in aggressive behaviors or statements (i.e., calling the military police as needed). b. The applicant met medical retention requirements per Army Regulation 40-501, chapters 3-31 through 3-37. He was considered psychiatrically cleared for any administrative action deemed necessary by his command. 5. On 10 December 2013, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 25 November to 2 December 2013. He elected not to appeal and his punishment, which included reduction to SPC. 6. On 19 December 2013, the applicant's unit commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200, paragraph 14-12c for commission of a serious offense. 7. The applicant requested redress on 30 December 2013, under Article 138, UCMJ. He contended that he was diagnosed and treated for PTSD at Fort Drum, NY in 2011; but, since reporting to Fort Bragg, NC, he had been unable to continue the medical care that he was previously under or receive adequate attention for his mental health and medical conditions. In fact, his discharge was punishment for having been injured in combat because his discharge was based on misconduct which would deny him the medical treatment he was promised when he enlisted. His mental health condition had declined significantly and directly contributed him being AWOL. His condition culminated in him attempting suicide and being hospitalized for six days in mid-December 2013. He further contended that during his period of AWOL he was seeking treatment and assisting his spouse during a health emergency. He argued that the decline in his mental health coupled with his diagnosis of PTSD by a civilian psychiatrist suggested that the “Fit for Duty” finding by the Robinson Health Clinic (Fort Bragg) was inaccurate. He requested referral to the Integrated Disability Evaluation System (IDES) and transfer to a Warrior Transition Unit (WTU). 8. On 10 January 2014, the applicant’s commander informed him that his request for redress was inappropriate because the Army had already provided a means for him to resolve the issue in accordance with redress procedures outlined in Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) and Army Regulation 27-10 (Military Justice). Further, the applicant failed to include a statement that he was a member of the Armed Forces on active duty and to specifically name the commanding officer who wronged him. Finally, as the company commander he did not have the authority to refer the applicant to a WTU/Warrior Transition Battalion (WTB) or process his separation through medical channels and he had not received any recommendation from a medical professional or seen any evaluation which would indicate the applicant was eligible for transfer to a WTU/WTB. 9. In the applicant’s rebuttal, dated 21 January 2014, he stated the commander had not followed appropriate Administrative Board Procedures. Consequently, the provisions found in Army Regulation 635-200 and Army Regulation 27-10 were not applicable to his situation because formal separation procedures had not been initiated. He provided the commander with his medical documentation and applicable regulatory guidance providing him the authority and responsibility to refer the applicant to a MTF as a means to initiate the IDES process. 10. On 4 March 2014, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200, for patterns of misconduct. The reasons cited were his being AWOL and failing to report on diverse occasions. 11. In conjunction with his separation processing the applicant completed a Separation Physical on 14 January 2014. He provided this document which shows no deficiencies were found and he was cleared for separation. 12. On 21 March 2014, the separation authority approved the applicant's separation as stated above and directed he be given an honorable discharge. 13. On 18 April 2014, he was discharged accordingly. His DD Form 214 shows he was credited with 7 years, 4 months, and 20 days of active duty service. 14. The applicant provided his service medical records which show he was diagnosed and treated for several medical conditions which included an adjustment disorder, anxiety, depression, and PTSD. These records include a Standard Form 600 (Chronological Record of Medical Care), dated 12 December 2013, which shows the applicant’s medical history was reviewed by a military physiatrist at the Robison Medical Center, Fort Bragg, NC, for the period 9 March 2010 through 12 December 2013. In addition, this form states that the applicant was screened for PTSD and TBI and these conditions were either not present or, if present, did not meet Army Regulation 40-501 (Standards of Medial Fitness) criteria for an MEB and that from a behavioral health perspective, the applicant met medical retention requirements and was considered psychiatrically fit for duty at that time, to include deployment. 15. The applicant also provided: a. a Psychiatric Evaluation, dated 23 December 2013, prepared by a civilian psychiatrist, who diagnosed him with PTSD. b. a DD Form 2808 (Report of Medal Examination), dated 14 January 2014, this form did not list any physical limitations for the applicant and cleared him for administrative discharge. c. his temporary physical profile, completed on 19 February 2014, which was issued for his anxiety, PTSD (by history), and asthma. d. a Department of Veterans Affairs (VA) Rating Decision, dated 19 April 2014, granting him a service connected disability rating of 100-percent for PTSD, effective 19 April 2014. e. numerous statements submitted by a GI Rights Counselor, his fellow Soldiers, supervisors, and spouse describing his conduct as outstanding prior to his deployment. Some letters recommended he be referred for further mental health evaluations and that his rank be restored. f. various email correspondence, text messages, and documents related to his military achievements (awards, training certificates, letters of appreciation, etc). 16. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and procedures for separating personnel for misconduct. Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave. 17. Paragraph 1-33 states that when the examining medical officer decides a member being considered for elimination for misconduct (chapter 14) does not meet the retention medical standards, he or she will refer that member to a medical board. The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending eth results of the MEB. The medical treatment facility commander will furnish a copy of the approved board proceedings to the commander exercising general court-martial convening authority (GCMCA) over the member concerned. The commander exercising GCMCA will direct the member to be processed through disability channels per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) when the disability is determined to be the cause or substantial contributing cause of the misconduct or circumstances warrant disability processing instead of administrative processing. 18. Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Paragraph 3–9 provides guidance for the TDRL. Specifically, it states the TDRL is used in the nature of a "pending list." It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. Requirements for placement on the TDRL are the same as for permanent retirement. The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation. The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208 (10 USC 1208). In addition, the condition must be determined to be temporary or unstable. b. Paragraph 4-17 provides guidance for Physical Evaluation Boards (PEBs). Specifically, it states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army. The PEB is not a statutory board. Its findings and recommendation may be revised. 19. The VA Schedule for Ratings Disabilities (VASRD), section 4.129, provides information regarding mental disorders due to traumatic stress. Specifically, it states that when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50-percent and schedule an examination within the 6-month period following the veteran’s discharge to determine whether a change in evaluation is warranted. 18. The 2008 National Defense Authorization Act (NDAA), section 3.1, effective 28 January 2008, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the VA. 20. In a 17 July 2009 memorandum, the Office of the Under Secretary of Defense (Personnel and Readiness) directed that as a matter of policy, all three Boards for Correction of Military Records will apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharged after 11 September 2001 and, in such cases where a grant of relief is appropriate, assign a disability rating of not less than 50-percent for PTSD unfitting conditions for an initial period of 6 months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence. It would be inequitable to treat PTSD unfitting conditions differently than any other unfitting conditions. Therefore, as a matter of equity and policy, provisions of Department of Defense or Army regulations or guidelines relied upon by the PEB will not be considered by the ABCMR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication in all cases in which the applicant was discharged on or after 11 September 2001. DISCUSSION AND CONCLUSIONS: 1. His medical records show he was diagnosed and treated for numerous medical conditions which included adjustment disorder, anxiety, depression, and PTSD but none of these conditions were determined to be severe enough to warrant referral into the physical disability system. Based on his disciplinary history his record included two negative performance counseling’s and NJP for an 8-day period of AWOL (resulting in his reduction to SPC), his chain of command initiated separation in accordance with Army Regulation 635-200, for patterns of misconduct. He was discharged accordingly on 18 April 2014. 2. It is apparent that his chain of command did not attribute his misconduct to his mental health condition and as such did not refer the applicant to the physical disability evaluation process. In fact, the preponderance of the evidence shows the applicant was screened numerous times for PTSD and TBI and he was found fit for duty by medical retention standards. 3. Nonetheless, the record clearly shows he was diagnosed with PTSD by both military and civilian psychiatrists during his period of service; therefore, it is reasonable to conclude that his condition failed medical retention standards. Substantiating this conclusion is the Department of Veterans Affairs decision to grant him 100-percent service-connected disability for PTSD, effective one day after his military discharge, namely as PTSD does not tend to occur abruptly. Moreover, PTSD may have been a mitigating factor for the misconduct that resulted in his military discharge. 4. Based on these circumstances and the available medical records the applicant meets the criteria under the principles of the 2008 NDAA for his PTSD conditions and placement on the TDRL on 19 April 2014, at a 50-percent disability rating. 5. In regard to restoring his rank to SGT/E-5, the applicant’s contentions that he was AWOL because he was seeking treatment for his PTSD and assisting his spouse with a medical emergency have been noted; however, he is ultimately responsible for his behavior. His reduction was appropriate in this case given the length of his absence and there is no evidence that his rights were violated during the NJP process. A Soldier’s mental health is required to be considered when initiating a misconduct discharge but it does not relieve the individual of the consequences associated with such misconduct. Further, the applicant elected not to appeal his punishment. There is no apparent error or injustice on this matter. 6. A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married). This correction of records may have an effect on the applicant's SBP status/coverage. The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately. A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp. The RSO can also assist with any TRICARE questions the applicant may have. 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: * retroactively placing the individual on the TDRL for a minimum of 6 months at a 50-percent disability rating for PTSD effective the date initially separated * having the U.S. Army Physical Disability Agency evaluate the applicant's medical conditions based on all available evidence to determine the appropriate final disability rating * paying him any retired pay due 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 to restoring his rank to SGT/E-5. _______ _ 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) AR20140013614 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140013614 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1