IN THE CASE OF: BOARD DATE: 14 January 2016 DOCKET NUMBER: AR20140014053 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests, in effect, correction of the applicant's records to reflect: a. medical disability as the reason for his separation action and retroactive award of the resulting benefits. b. retroactive medical disability retirement in accordance with (IAW) Title 10, U.S. Code (10 USC), section 1201, with a disability rating of 50% in accordance with Title 38, CFR (Code of Federal Regulations) (38 CFR), section 4.129. 2. In the alternative, counsel requests correction of the applicant's record to show he was rendered temporarily unfit and transferred to the Temporary Disability Retired List (TDRL) with back pay and allowances and an initial disability rating of at least 50% IAW 38 CFR, section 4.129. 3. Additionally, counsel requests that: * the Board include a member who is a physician, clinical psychologist, or psychiatrist * the Board expedite the final decision in this case 4. Further, counsel requests a waiver of the time limit based on evidence of significant errors and injustice in this and any further remedies the Board determines just and appropriate. 5. Counsel states, in effect: a. The applicant was unlawfully and inequitably discharged from the Army due to "chronic adjustment disorder" instead of being medically retired for his in-service diagnoses of post-traumatic stress disorder (PTSD) and combat-related depression. His discharge violated a litany of Army regulations and was based on one provider's baseless and legally invalid "diagnosis" that he suffered long-standing, pre-service behavioral problems for which the Army conceded there is absolutely no evidence. The medical record and common sense indicate that this once healthy Soldier returned from war with unfitting PTSD. b. The applicant's military career was cut short by diagnosed mental injuries from his combat service in two wars. In January 2010, when he returned from Afghanistan on leave, his wife barely recognized the nightmare-plagued man who stood before her. Shortly after his return, he was heavily intoxicated in the passenger seat of his wife's car and he suffered flashbacks and a severe panic attack. He asked his wife to pull the car over, took a gun from the glove compartment, and attempted to shoot himself in the heart. c. He was promptly diagnosed with PTSD and major depressive disorder by numerous military psychiatric professionals on repeated occasions. These mental health professionals recorded that the applicant, while in the service, was diagnosed with PTSD, depression, and suicidal ideation, which was caused by exposure to combat experiences in Iraq and Afghanistan. His illness was caused by the extreme stress of his military occupational specialty (MOS) as a gunner and combat engineer and by the trauma of other violent wartime experiences, including witnessing dead and injured civilians and having his vehicle struck by roadside explosives. These experiences are documented in the applicant's military and medical records, corroborated by contemporaneous witnesses in his command, and are otherwise consistent with the circumstances, conditions, and hardships of his service and MOS. d. For months after his attempt "in sickness, to die," the applicant continued to participate in individual cognitive behavioral therapy for PTSD and major depression with a military mental health specialist. He also attended "supportive/bereavement counseling" and "PTSD Group" therapy for "chronic PTSD." Military psychiatrists prescribed him a cocktail of four psychotropic medications for PTSD symptoms like depression and anxiety. The majority concluded that his primary diagnosis was PTSD, though some believed his symptoms were more closely related to major depression. Together, these professionals established an overwhelming credible and consistent consensus that the applicant was suffering from disabling medical conditions stemming from wartime stress and trauma. e. Against that consensus, a command-directed mental status evaluator in May 2012 suddenly reported, without any supporting evidence, that the applicant had personality and chronic adjustment disorders only, meaning that he had a long-standing, pre-service history of behavioral problems instead of treatable PTSD or depression. A civilian provider, Dr. C____ Y___, had already prescribed the applicant two psychotropic drugs to treat PTSD and depression, and she never called for him to discontinue their use. Her examination rejected 4 months of consistent, well-documented diagnoses from the applicant's primary treatment providers, who had spent extended hours of therapy and interaction with him, based, she said, on her "perusal of [his] medical record" and "a succinct diagnostic/capacity evaluation." f. Dr. Y___ failed to corroborate her slapdash diagnosis with any other professional, let alone the higher medical authorities specified in Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 5-17, who by law must approve adjustment and personality disorder diagnoses for all Soldiers who have deployed to a combat zone. Dr. Y____ also failed to provide any documentation or comprehensive examination of the applicant's PTSD as required by the Office of the Surgeon General (OTSG)/Medical Command (MEDCOM) Policy Memorandum 10-1040 (and now by Policy Memorandum 11-010 and 12-035) for all Soldiers who have previously been diagnosed with PTSD or face separation for adjustment disorder. In a final insult, Dr. Y___ reported that an anonymous member of the applicant's command had "refuted" his reported combat experience, even though his military and medical records contain numerous credible references to his wartime traumas; his primary specialty as an Army gunner and combat engineer in two war zones also tends to corroborate his consistent, credible reports of combat stressors. g. Based entirely on Dr. Y___'s inaccurate and invalid chronic adjustment disorder diagnosis, the applicant's commander recommended that he receive a stigmatizing general discharge, which she tellingly said was necessary "due to the Soldier's medical condition." The Commander conceded, too, that he had absolutely no history of behavioral problems though he was being separated in theory for chronic, pre-service behavioral issues. Ultimately, the applicant was honorably separated under AR 635-200, paragraph 5-17, a "condition, not a disability," based on a legally invalid diagnosis of "adjustment disorder with depressed mood (chronic)." He received no benefits. h. The applicant's separation action was based on both factual errors and procedural injustices. Dr. Y___'s chronic adjustment disorder diagnosis was the sole stated basis for the applicant's separation. This was uncorroborated, improper, and void. The record is simply void of any evidence that the applicant had a history of long-standing chronic or pre-service behavioral issues. The overwhelming weight of medical evidence on record, the overwhelming consensus of the applicant's military mental health providers, and common sense all dictate instead that this combat engineer returned home bearing mental injuries from harrowing wartime stresses few of us will ever know or imagine. He was rendered unfit for continued service and separated from active duty due to PTSD and major depression stemming from wartime service. i. Current Department of Defense (DOD) and Army regulations now treat chronic adjustment disorder like PTSD, or as a disability eligible for medical retirement. The Board should correct the applicant's records and right this wrong by awarding him medical disability retirement benefits the Army wrongfully denied him. j. Federal courts hold that an administrative discharge is void if it ignores procedural rights or regulations, exceeds applicable statutory authority, or violates minimum concepts of basic fairness. Relief for service members who have been wrongfully discharged is premised on the central principle of making the injured service member "whole." In this case, but for Dr. Y___'s adjustment disorder diagnosis, the applicant would have been medically separated for unfitting PTSD and major depression. AR 635-200 states Soldiers will be processed for a mental disability separation if PTSD or mental illnesses like depression are a "significant contributing factor" to the unfitting mental condition. Since 2013, DOD Instruction (DODI) 1332.38 (Physical Disability Evaluation) and Army Directive 2013-12 (Implementation of DOD Policy Change Concerning Chronic Adjustment Disorder) also provide medical disability retirement eligibility for Soldiers separated due to "chronic adjustment disorder," as the applicant was. k. In this case, the Army properly determined the applicant's mental condition rendered him permanently unfit for continued military service, but improperly ignored the overwhelming evidence that PTSD and major depression were, at the very least, "significant contributing factors" to his unfitting condition. Even Dr. Y___ went so far as to write that her chronic adjustment disorder diagnosis was "primarily related to his military service." Recent policy changes regarding adjustment disorder also reaffirm the applicant should have received a medical disability retirement for his disabling wartime-related mental condition. Therefore, the Board is urged to uphold its mandate to correct errors and injustices by correcting the applicant's record to reflect a medical disability as the reason for his separation and awarding him a retroactive medical disability retirement in with a disability rating of 50%. l. Even if this Board does not conclude that PTSD and depression rendered the applicant permanently unfit for service, it should still be clear that these conditions rendered him at least temporarily unfit. As such he should, at the very least, be transferred to the TDRL, with back pay and allowances and an initial disability rating of at least 50%. 6. Counsel provides a statement of facts describing the applicant's record of honorable service and harrowing wartime service: a. The applicant enlisted in the Regular Army in February 2006, at age 17. His enlistment physical examination shows a perfect "111111" PULHES Factor, including a perfect rating on the psychiatric scale, indicating that he had "no psychiatric pathology." Three months after his eighteenth birthday he began a nearly 14-month deployment as a combat engineer in Iraq. He worked in a state of constant stress with repeated, often unrelenting combat exposure. In Iraq his platoon was tasked with erecting defensive walls around Patrol Base Dog; those walls were meant to keep out the mortar and small arms fire he encountered almost every day. These attacks, he stated, "ensured we couldn't ever feel safe or sleep." Later that year the Army decided to abandon Patrol Base Dog because it could not be maintained under the constant barrage of attacks. b. The applicant's military records confirm that he experienced repeated combat exposure and worked under conditions requiring persistent unrelenting hypervigilance and fear. In recommending the applicant for the Army Achievement Medal in October 2007, his platoon leader at Camp Liberty, Iraq, commended him for displaying "skill and professionalism, even while under small arms fire," while conducting "route sanitation missions" to detect and clear roadside explosives. She also noted he was a gunner on more than 15 command and control visits, recons (reconnaissance), and missions. He also performed construction work during a force protection mission outside Mushada, Iraq, in which he encountered one suicide vehicle-borne improvised explosive device (SVBIED), or car bomb, small arms fire, and indirect fire. The applicant saw numerous maimed and injured civilians and had recurring memories of sheep running scared through the Army's formations, red with civilians' blood. c. When he returned from Iraq, his wife and high school sweetheart "noticed some signs that he was different, slowly but surely." He seemed suddenly distant and annoyed by emotions. She suspected he had PTSD. d. In September 2009, about a year and a half after the applicant returned from Iraq, he was deployed to Afghanistan. His wife writes it was "totally irresponsible" and "INSANE to … deploy him so soon in his mental state." Less than 2 weeks after arriving in Afghanistan he witnessed a significant traumatic event. e. His Platoon Sergeant entered a sworn statement in the applicant's personnel records detailing a bloody and traumatic incident where the applicant was tasked with triaging dead and injured civilians after a civilian bus struck a roadside explosive. In his statement the Platoon Sergeant wrote the applicant had been 100 meters from where a "big civilian bus" had driven over a pressure plate improvised explosive device (IED)." The site was horrendous; human remains were everywhere. The applicant, a trained Combat Lifesaver, was assisting in the triage of the wounded. In one incident they were trying to remove a body from under the bus and blood was "raining" down on them from another body in the bus roof. f. The applicant felt traumatized and responsible for those civilians' deaths because he and his unit had redirected that bus to go down the road in which it struck a roadside IED. The applicant had just turned 21 years old. g. Most of his remaining missions in Afghanistan were performing IED route clearance, requiring combat hypervigilance and ingrained paranoia. On occasion he used his truck to shield other Soldiers from small arms fire. He writes, "I often think how my body resisted when I moved to place my truck in the line of fire because it didn't like the idea of jumping in front of 7.62 rounds." He was tasked with carrying body bags on every mission, one for each of his Soldiers and one for himself. He saw those bags as a constant "sad" and "creepy" reminder of death around every corner. 7. Counsel describes the applicant's deteriorating mental condition: a. The applicant returned home from Afghanistan on leave in January 2010. His wife writes that she "barely recognized him… [His] anger and irritability [were] on an entirely new scale." He started forgetting "the smallest things." He was mad at the TV controller for not clicking immediately. He was mad at the red light for being red too long and angry at the house for being too small. The applicant writes that he was angry all the time and didn't want to talk. He was drinking a lot for the first time in his life and trying to make sense of what he had seen, what was happening to him, and how to control it. b. Shortly after his return from Afghanistan, while heavily intoxicated in the passenger seat of his wife's car, he suffered flashbacks and a severe panic attack. In a drunken panic, he asked his wife to pull over, and removed a gun from the glove compartment and attempted to shoot himself in the heart. The gun shot missed his heart and lodged in his left shoulder. He was rushed to a nearby hospital and soon transferred to Fort Drum, NY, for medical attention and more than 3 weeks of psychiatric hospitalization at Samaritan Mental Health Center. 8. Counsel describes the applicant's record of military psychiatric providers' consistent, credible diagnoses of PTSD and combat-related depression: a. In his initial mental health services intake at Fort Drum with Dr. J______ W___, on 4 February 2010, the applicant reported anxiety, inability to think about the future, and having the thought "What is the point [of living]?" running through his head. Dr. W___ diagnosed him with major depressive disorder and recorded that the applicant's "mental status was abnormal "with "slowed speech," "depressed [and] fluctuat[ing] mood," "blunted affect," "poor judgment/insight," and "poor attention and memory." Dr. W____ referred the applicant to the inpatient psychiatric ward. b. Though the applicant was scheduled to be released from the inpatient ward on 17 February 2010, Dr. C____ Y___ re-evaluated him on that date and ordered that he be re-admitted due to his persistent "suicidal ideation, intent, and plan" and apparent inability to verbalize a safety plan for himself should his suicidal ideation again overwhelm him. In a Mental Health Outcomes Questionnaire completed on that date, the applicant endorsed "frequent" self-blame, "disturbing thoughts," fear, irritability, sense of worthlessness, hopelessness, difficulty concentrating, feeling that something was going to happen, and that something was wrong with his mind. He constantly had difficulties falling and staying asleep. Dr. Y___ prescribed him medication to treat depression, anxiety, and PTSD, and an anti-psychotic agent was used to treat bi-polar disorder, schizophrenia, and PTSD symptoms. c. After he was transferred to outpatient treatment, military psychiatric professionals repeatedly determined his mental condition was caused by combat-related stressors and other traumatic wartime experiences. d. In the Military Version (PCL-M) PTSD Checklist Questionnaire, on 23 and 24 February 2010, the applicant scored between 63 and 81 out of 85 for PTSD. e. In a follow-up "comprehensive examination," Dr. A_______ D________ noted the applicant had seen multiple combat stressors over the course of two deployments, which negatively impacted his mental health. She noted his psychiatric symptoms included "poor sleep, anhedonia (inability to feel pressure), nightmares, flashbacks, poor concentration, emotional numbness, irritability, hyper vigilance, and an easily startled reaction" as well as "fatigue, recent weight change of 30 lbs within [the] last few months, anxiety, depression, sleep disturbances about 1-2 hours per night, loss of interest in activities … suicide attempt, low-self esteem, and interpersonal relationship problems" – all symptoms associate with PTSD. The applicant was referred to Dr. J____ B___ who diagnosed him with "Primary Problem: PTSD" that same day. f. Dr. B____ noted the applicant's PTSD included "occupational problems" after "multiple exposures to combat stress" and "exposure to actual or threatened death or serious injury that resulted in an intense emotion of fear, helplessness, or horror." g. On 2 March 2010, he was evaluated by Dr. B___ K_____ and diagnosed with major depressive disorder. Dr. K_____ then conducted a command-directed mental status evaluation 2 days later. He diagnosed the applicant with "severe major depression disorder," but it was too soon to determine the applicant's prospects for recovery because the applicant had not received sufficient treatment to determine retainability. He called for re-evaluation following 90 days of treatment in the Behavioral Health Department. Dr. K____ declined to mark that the applicant manifested a long-standing disorder of character, behavior and adaptability or that he met the psychiatric criteria for expeditious administrative separation IAW Chapter 5-17, AR 635-200. h. On 13 March 2010, the applicant's primary individual psychotherapist, Dr. T_______, diagnosed him with PTSD and referred him to begin attending "PTSD Group" therapy in addition to individual treatment sessions. The PTSD Group's psychiatric treatment provider, Dr. V_______ D_______-C____, also diagnosed him with "chronic PTSD." i. The following day, Dr. L___ Z_______ diagnosed the applicant with major depression, though his medical records continued to contain PTSD and major depression diagnoses. She prescribed him medication for depression, sleep and anxiety. All of the prescribed medications are used to treat PTSD. j. On 5 April 2010, Dr. B______ B_____ recorded that the applicant's medical history consisted of "depression, PTSD, and attempted suicide." She recorded no sign of any behavioral disorder. k. On 21 April 2010, Dr. Z_______ diagnosed the applicant with continued major depression. She suggested he start taking two new drugs. She also encouraged him to continue attending PTSD group therapy. Though less than 90 days had elapsed since Dr. B____'s mental status evaluation, Dr. Z_______ recommended immediately re-evaluating the applicant for fitness for duty. l. The following day, the applicant's Commanding Officer, CPT A____ C____, notified him that she was referring him to a command-directed mental status evaluation on 26 April 2010. The Commander noted that no administrative action was contemplated. m. The applicant met with Dr. Y____ on 26 April 2010. She concluded his mood was "depressed" and she reported she discussed his medications and treatments and the availability of crisis services for his suicidal ideation. She noted he would return for testing on 30 April 2010 with her full report to follow. n. On 7 May 2010, Dr. T_______ again diagnosed the applicant with PTSD and depression. He recorded the applicant's attitude as abnormal, his mood as depressed and dysphoric, and his affect as abnormal and flat. 9. Counsel describes Dr. Y___'s unsupported behavioral disorder diagnoses in her Mental Status Evaluation. a. Though the applicant was scheduled for a mental status evaluation on 30 April 2010, he ultimately met with Dr. Y___ on 12 May 2010. According to Dr. Y____ "that comprehensive psychiatric evaluation" consisted, in its entirety, of reviews of the questionnaire completed by [the applicant]," the referral form furnished by his commander, her "perusal of the medical record, and "a succinct diagnostic/capacity evaluation." She wrote the applicant also competed psychological testing, but no objective documentation about those tests or his answers appear anywhere in the record. The applicant recalls the exam lasting well under 30 minutes. b. As a result of the slapdash evaluation, Dr. Y____ diagnosed the applicant with personality disorder and chronic adjustment disorder with depressed mood, which she said was "primarily related to his military service." She did not provide any evidence of long-standing, chronic, or pre-service behavioral problems to corroborate those diagnoses and did not instruct the applicant or any of his treatment providers to discontinue prescribing medications for anxiety, PTSD, and depression – conditions she apparently asserted he did not have. c. Based on those diagnoses, Dr. Y____ recommended that the applicant receive as expeditious administrative separation, IAW AR 635-200, Chapter 5-17, for "Adjustment Disorder with Depressed Mood." She recommended, in bold face, that he not be allowed access to weapons or ammunition due to his suicidal symptoms and recommended that he be barred from reenlistment due to his apparently permanent mental impairments. She provided no further evidence or documentation to support her "chronic" behavioral diagnoses, even though AR 635-200, Chapter 5-17(b) states, "A recommendation for separation [under that chapter] must be supported by documentation confirming the existence of the physical or mental condition." That documentation confirming the behavioral diagnosis must be clear enough for the diagnosis to be approved by the treatment facility's Chief of Behavioral Health and by the Office of the Surgeon General (OTSG), as required under Chapter 5-17(a). d. No such confirmatory documentation exists anywhere in the record. Dr. Y___'s diagnoses was never approved by anyone, let alone by those higher authorities specified by lAW AR 635-200, Chapter 5-17. The only notes Dr. Y___ made in reference to the applicant's PTSD were also blatantly superficial and inaccurate. She wrote simply, "This SM has deployed overseas. He has reported PTSD symptoms including nightmares related to combat experiences involving removal of dead children's bodies while deployed. The combat-related traumatic experience (identified as the root of his symptoms) was refuted by his Chain of Command." Three days later, SFC V____-P____ provided a sworn statement corroborating that traumatic experience and the applicant's military and medical records contain credible references to many more. That fact apparently did not slow his command's hasty action to administratively discharge this mentally injured Soldier. 10. Counsel describes the events culminating in the applicant's administrative separation for adjustment disorder with depressed mood. a. The applicant's command flagged his records the day after Dr. Y___'s mental status evaluation. On 14 May 2010, he was notified that they would proceed with the separation action. The applicant never received any counseling in any form about any supposed behavioral problems, even though the governing regulation states that "separation processing may not be initiated under this paragraph until the Soldier has been counseled formally concerning deficiencies and has been afforded the ampler opportunity to overcome these deficiencies as reflected in appropriate counseling or personnel records." If the Soldier's problem is truly behavioral, instead of medical, the Army is required to treat it as such. b. Instead, without affording the applicant counseling or an opportunity to overcome his supposed behavioral deficiencies, on 14 May 2010, his commander notified him of her recommendation that he receive a stigmatizing general discharge for adjustment disorder, even though the Commander's Report noted that he had no history of behavioral problems whatsoever. Her recommendation was based entirely, she said, on the fact that, on 12 May 2012, Dr. C____ Y___ diagnosed (the applicant) as having an adjustment disorder with depressed mood and a self-inflicted gunshot wound to [his] shoulder. The commander explained that it was not feasible or appropriate to retain the applicant due to his medical condition, which she determined was severe enough that it would be in the best interest of the Army to separate him. c. Mentally impaired and fearing a stigmatizing discharge characterization, the applicant waived a separation board and legal counsel, choosing instead to write a brief memorandum titled "Rebuttal to Administrative Discharge," in which he pled for understanding of his mental condition and an honorable characterization of service. In the memorandum he described the incident that occurred when he was on mid-tour leave from Afghanistan when he received the self-inflicted gunshot wound. He stated other than that single act he had never been punished or in any trouble. d. The chain of command recommended approval of the discharge and on 15 June 2010, he was discharged due to a behavioral disorder he did not have. He received no benefits and had no access or safety net to continue seeking psychiatric care. 11. Counsel states the applicant's PTSD symptoms continue to this day. The applicant is undergoing the long process of evaluation and treatment for PTSD through the Department of Veterans Affairs (VA). His wife offers sad, current testimony about his continual struggle with PTSD symptoms. 12. This Soldier simply did not have any pre-service, long-standing, chronic pattern of behavioral problems. He was given a perfect psychiatric rating in his entrance examination and then wounded by war. He and his young wife are left still trying to heal after his treatment was interrupted by the Army's decision to cast him off. 13. Counsel states the applicant's administrative separation for chronic adjustment disorder was in error and an injustice because it rested entirely on Dr. Y___'s legally invalid and factually baseless "diagnosis." a. Dr. Y___'s adjustment disorder diagnosis was not proper and should be considered as being without proper authority and void because the diagnosis was never corroborated or approved by higher authority as required by AR 635-200, Chapter 5-17. Recognizing that PTSD is commonly misdiagnosed, the Army and MEDCOM have instituted procedural safeguards to prevent medical providers from giving adverse behavioral diagnoses in cases where Soldiers' symptoms may more accurately be associated with a prior traumatic experience or combat exposure. b. AR 635-200, paragraph 5-17(a)(9)(b), prohibits administratively separating any Soldier who has ever deployed to a combat zone (or imminent danger pay area) based on a diagnosis of adjustment disorder or personality disorder, unless that diagnosis is first corroborated by the treatment facility's Chief of Behavioral Health and approved by the OTSG. The regulations procedural requirements are simple and clear enough and they were in effect for years before the applicant's separation for adjustment disorder. c. And yet, in the case of this combat veteran of two foreign wars, that regulation was simply and blatantly ignored. Dr. Y___'s adjustment disorder diagnosis was never corroborated by anyone after her, let alone by the Chief of Fort Drum's Behavioral Health Department or the OTSG. Without both of their signatures in approval, her uncorroborated diagnosis was and ought to be treated as invalid. d. Because an uncorroborated and invalid adjustment disorder diagnosis was the Army's only stated basis for the applicant's separation, it is clear the decision to separate him was without proper authority. That was not a harmless error. The Army enacted this clear regulation for the important purpose of preventing mentally injured combat veterans from having their careers ended without a dime of medical benefits based on the exact sort of insultingly slapdash misdiagnosis seen in this case. On this basis alone, the applicant's administrative discharge for adjustment disorder was procedurally improper, fundamentally inequitable, and legally void. 14. Counsel states that Dr. Y___'s adjustment disorder diagnosis was also invalid because: a. She unlawfully failed to objectively document and justify that diagnosis on the record as required by AR 635-200, paragraph 5-17. (1) It would be nearly impossible for appropriate authorities to corroborate Dr. Y___'s slapdash adjustment disorder diagnosis, as required, because she failed to support that diagnosis with any objective documentation, tests, notes, or explanation. AR 635-200, paragraph 5-17(b) states, "A recommendation for separation must be supported by documentation conforming the existence of the physical or mental condition" and ruling out the contributory effects of PTSD. (2) Despite these requirements, the record in this case remains absolutely void of any evidence the applicant had a history of long-standing, chronic, or pre-service behavioral conditions like Adjustment or Personality Disorders. Dr. Y___ failed to document any such evidence to support her diagnosis for a reason – none existed. The applicant was given a perfect psychiatric health score upon entering the Army and had, according to his command, absolutely no history of behavioral problems or deficiencies prior to his separation. (3) OTSG/MEDCOM Policy Memo 11-010 specifies exactly what sort of documentation is required from a provider seeking to confirm an adjustment disorder diagnosis with appropriate higher authorities. The objective diagnostic "screening tools" used in arriving at those conclusions "must be in the submitted packet" for higher authorities' approval of the diagnosis." Instead of providing the required level of confirmatory, specific documented evidence, Dr. Y___ provided essentially no documentation or explanation for her contradicted diagnosis. In fact, the only evidence she did provide about her adjustment disorder diagnosis strongly suggested that PTSD was likely contributory to the applicant's mental condition. She wrote that the applicant's adjustment disorder with depressed mood was "primarily related to his military service" and yet dismissively failed to investigate his extensive exposure to combat stresses and wartime trauma during that period of service. That failure to competently and comprehensively investigate the applicant's PTSD was both professionally baffling and unlawful. b. Her Mental Status Evaluation unlawfully failed to include a "full comprehensive examination" of the applicant's PTSD symptoms and the possible effects of PTSD on his mental condition. By law, that comprehensive PTSD examination must be documented in the Soldier's medical records, personnel files, and separation packet before separation proceedings can occur. (1) The Army OTSG states a "diagnosis of PTSD may frequently stay hidden if clinicians do not specifically investigate it." Because PTSD is so commonly missed as the true reason for a Soldier's separation from duty, the Army has enacted clear requirements for providers to meaningfully investigate and specifically document the possible relation of PTSD to a Soldier's proposed separation action. (2) In effect at the time of the applicant's separation, OTSG/MEDCOM Policy Memo 10-040 required that, prior to separation, Soldiers who have already been diagnosed by a physician, clinical psychologist, or psychiatrist as experiencing PTSD will receive a full comprehensive examination to assess whether the effects of PTSD are contributing or related the reason for separation. If PTSD (or another mental illness like depression) is at least a significant contributing factor to the Solder's unfitting condition, AR 635-200, paragraph 5-17 requires that his command process him for medical disability separation, instead of administrative separation. (3) OTSG/MEDCOM Policy 10-040 also required that objective PTSD "screenings, as well as full comprehensive evaluations … will be documented … the Mental Status Evaluation Form and in the progress note located in the Soldier's AHLTA [medical] record… The result of the evaluation, with a medical opinion as to the effects of PTSD on the screening action will be provided to the commander for inclusion in the separation documentation and personnel files before separation proceedings can occur." The current regulation also doubles down on this requirement: OTSG Policy Memo 12-025 explicitly states that "Administrative separation for an adjustment disorder for any Soldier who has ever been deployed to an imminent danger pay area requires an evaluation for PTSD, as well as OTSG approval," because "particular caution is required in attributing current symptoms that may be associated with a prior traumatic experience or PTSD to certain diagnoses (i.e., personality disorder, adjustment disorder, malingering)." (4) The applicant had already been diagnosed with PTSD and combat-related depression for months by multiple military psychiatric professionals, including his primary therapist, Dr. T_______. Dr. Y___ herself had previously prescribed the applicant two psychotropic drugs used to treat PTSD, and she never directed him to discontinue their use. She was required by Army regulations to provide a carefully documented full, comprehensive examination of the applicant's PTSD and its contributory effects to his mental condition. She absolutely failed with this requirement. (5) In Dr. Y___'s own words, her entire mental status evaluation consisted of "reviews of the mental status evaluation questionnaire completed by the applicant and the Referral for Mental Status Evaluation Form furnished by the company commander, perusal of the medical record, and a succinct diagnosis/capacity evaluation. Dr. Y___ failed to document the results of a single objective psychological test or diagnostic screening tool. Her own statement indicates that his chronic adjustment disorder with depressed mood was "primarily related to his military service" confirms that combat-related PTSD was very likely at least a significant factor in his unfitness for duty. (6) Despite that record, Dr. Y___ appears to have ruled out a PTSD diagnosis entirely on an undocumented hearsay assertion that an anonymous member of the applicant's command had "refuted" the traumatic experience "identified as the root of his PTSD symptoms." The applicant's command, in fact, offered sworn, contemporaneous evidence to corroborate his reported traumatic experience of triaging dead and wounded civilians after a horrific bus bombing in Afghanistan. (7) Just days before Dr. Y___'s "succinct" evaluation, Dr. T_______, the applicant's primary therapist, once again diagnosed him with PTSD based upon his hours of therapy and one-on-one interaction with him. Had Dr. Y___ conducted a full and comprehensive examination of the applicant's prior trauma, combat experiences, and PTSD, she would have had to grapple with the overwhelming weight of this evidence, which strongly indicated the applicant was impaired for military duty due to PTSD and depression related to his wartime service. c. Dr Y___ failed to provide evidence to overcome the strong legal presumption in AR 600-8-4 (Line of Duty Policy, Procedures, and Investigation) that suicidal Soldiers are suffering from mental illness or injury, not behavioral problems. Dr. Y___'s failure to investigate PTSD or other mental illness diagnoses was not a trivial oversight. Suicidal Soldiers are by law presumed to be suffering from mental health problems, not behavioral conditions, all the more so when they are returning from highly traumatic tours of duty at war. AR 600-8-4 states "the law presumes that a mentally sound person would not commit suicide or make a bona fide attempt to commit suicide." By Army regulation, his suicide attempt was a presumptive sign of mental illness or injury. The presumption is not just written into law. Mental health professionals know that PTSD is "strongly linked to suicidal behavior and it is a major predictor of who transitions from suicide ideation to attempting suicide. The applicant returned from war a very changed man – mentally injured and a clear suicide risk for the first time in his life. The record shows he injured himself and was unfit for duty because he had diagnosed mental injures like PTSD and depression. 15. Counsel states the record overwhelmingly demonstrates the applicant was separated from the service because he was suffering from unfitting PTSD and combat-related depression, not chronic behavior problems. a. The applicant's military and medical records, his credible testimony, and common sense all indicate that this Gunner and Combat Engineer with "Combat Lifesaver" training endured extensive exposure to wartime stressors and trauma. b. The applicant's treating Army psychiatric providers found his combat stressors credible and consistent and all of them, including Dr. Y___, determined that wartime stressors at least significantly contributed to his unfitting mental condition. c. The applicant's command stated that he was mentally unfit for continued service "due to [his] mental condition" and affirmed that he had no history of behavioral problems whatsoever. His command, by their own words, affirmed that he was separated due to medical conditions like PTSD and depression, not chronic behavioral problems. If he truly had chronic behavioral problems, instead of medically treatable PTSD and depression, his command would have been required to afford him meaningful counseling and rehabilitation opportunities prior to initiating separation action so he could correct his behavioral deficiencies. But he never received any counseling, formal or otherwise, concerning behavioral problems anywhere in his record. 16. Counsel states the Army invalidly separated the applicant in clear violation of numerous Army and DOD regulations, as previously discussed. His command ignored requirements intended to protect and treat Soldiers suffering from PTSD and separated him for adjustment disorder without a valid, documented, or credible diagnosis to support that separation. These actions ignored procedural rights and regulations, exceeded the Army's statutory authority, and violated concepts of basic fairness. His discharge was, therefore, void and deserves redress. 17. Counsel states the applicant should have been medically retired because PTSD and depression were at least "significant contributing factors" for his proposed separation. a. It is apparent from the record the applicant was repeatedly diagnosed with PTSD and major depression, which were "significant and contributing factors" to his mental condition. His psychiatric providers' overwhelming consensus was that PTSD and depression were the primary cause of his mental unfitness and suicidal symptoms. b. Therefore, the Board should correct the applicant's records to accurately reflect he was separated from the Army due to a medical disability incurred while in service. But for Dr. Y____'s unlawful diagnosis and but for his command's unlawful separation action, the applicant would have been medically retired for PTSD and/or depression. Because those conditions were severe enough to render him permanently unfit for continued or future military service and severe enough to bring about his release from active service, the Army was required to medically retire him with a disability rating of at least 50%. 18. Additionally, counsel states, in the alternative, current Army and DOD regulations provide medical disability retirement eligibility for Soldiers, like the applicant, separated for "chronic adjustment disorder." These policy changes affirm the Army's view that Soldiers, like the applicant, merit a medical disability retirement for their mental injuries of war. a. Since 2013, DODI 1332.38 and Army Directive 2013-12 have provided for medical disability retirement eligibility for Soldiers separated due to "chronic adjustment disorder" in much the same manner as PTSD and comorbid mental illnesses like depression. Army Directive 2013-12 states that Soldiers will be referred for medical disability processing when the persistence and/or recurrence of chronic adjustment disorder symptoms "interfere with duty performance and necessitate limitations of duty or duty in a protected environment." b. Therefore, even if Dr. Y___ had impeccable proof and documentation to support her diagnosis that the applicant had chronic adjustment disorder instead of PTSD or depression, he would have been medically separated for the diagnosis in today's Army. This strongly affirms the military's view that Soldiers like the applicant, who entered the Army healthy and happy and returned from war suicidal and troubled, merit medical disability retirement for their apparent mental injuries of war. 19. Counsel states that even if the applicant's mental condition was not permanently disabling, it is clear that his command and Dr. Y___ believed it rendered him at least temporarily unfit for continued Army service. Therefore, in the alternative to medical disability retirement, the applicant should be retroactively placed on the TDRL, with back pay and allowances, and a disability rating of at least 50%. 20. Counsel concludes by stating the applicant was hospitalized, treated, and medicated for diagnosed PTSD and depression, then discarded as a behavioral deviant without any history, evidence, or legally valid diagnosis to support that determination. The Board is urged to honor its abiding moral sanction to grant thorough and fitting relief by awarding the applicant the medical disability retirement he was unfairly and inaccurately denied. 21. Counsel provides an Exhibits List that included: * applicant's affidavit * applicant's spouse's affidavit * applicant's DD Form 214 * applicant's Enlisted Record Brief (ERB) * DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG), dated 13 May 2010 * DA Form 4857 (Developmental Counseling Form), dated 14 May 2010 * DA Form 3822-R (Report of Mental Status Evaluation), dated 12 May 2010 * DA Form 2823 (Sworn Statement), dated 15 May 2010 * DA Form 638 (Recommendation for Award), page 1 * ten Standard Forms (SF) 600 (Chronological Record of Medical Care), dated between February 2010 and May 2010 * Radiology Results, dated 22 February 2010 * Outcome Questionnaire, dated 17 February 2010 * PTSD Checklist – Military Version (PCL-M), dated 23 February 2010 * two Outcome Questionnaires, undated * Outcome Questionnaire, dated 16 March 2010 * Clinical Record, dated 24 February 2010 * Recommendation from Dr. B___ D. K_____ * Intra agency patient referral form CMHS Groups, dated 13 March 2010 * Consult Report, dated 26 April 2010 * medical screening report on the applicant's left shoulder, dated 5 April 2010 * Service Member Notification of Commanding Officer Referral for Mental Health Evaluation * Commanding Officer Request for Routine (Non-Emergency) Mental Health Evaluation, dated 22 April 2010 CONSIDERATION OF EVIDENCE: 1. Title 10, USC, 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 on 22 February 2006. He held military occupational specialty 21B (Combat Engineer). 3. The available evidence shows he served in Iraq from 7 September 2006 to 25 October 2007 and in Afghanistan from 17 July 2009 to 13 March 2010. 4. Counsel provides: a. An SF 600, dated 4 February 2010, showing the applicant was seen at Guthrie Army Hospital ,Psychology Clinic, Fort Drum, NY. He was referred because of a suicide attempt in Florida during rest and recuperation from Afghanistan. He was diagnosed with major depression, single episode and referred to the Samaritan Mental Hospital (SMH) for psychiatric evaluation and medical care for the wound to his shoulder. b. An SF 600, dated 17 February 2010, showing he was seen at the Guthrie Army Hospital Psychology Clinic following release from SMH. He told them he wasn't ready to leave; he just wanted to "jump in front of a bus or something." He was escorted back to SMH's emergency room for re-admission. c. Radiology Results, dated 22 February 2010, indicating he had a bullet in his left shoulder area. d. An SF 600, dated 24 February 2010, showing the applicant was seen in the Psychology Clinic at Fort Drum for an initial intake with the clinical record indicating the applicant's primary problem was PTSD. e. An SF 600, dated 2 March 2010, showing he was seen at the Guthrie Psychology Clinic by Dr. B___ D. K_____ for a psychiatric exam. He was diagnosed with major depressive disorder, severe without psychotic features. The examining provider noted significant combat-related stressors that did not appear to meet the criteria for PTSD in regard to severity, but were contributory to depression and a previous suicide attempt. The examining provider entered the note "[rule out] PTSD." An accompanying Report of Behavioral Health Evaluation shows the findings as noted above and states the applicant was psychiatrically cleared for any administrative action. f. An SF 600, dated 16 March 2010, showing the applicant was seen at the Psychology Clinic to follow-up with Dr. J____ T_______. g. An SF 600, dated 29 March 2010, showing the applicant was seen at the Guthrie Psychology Clinic by Dr. V_______ D_______-C____, and he was diagnosed with PTSD. h. An SF 600, dated 30 March 2010, showing the applicant was seen at Guthrie Psychiatry by Dr. L___ Z_______, who noted the applicant had a depressive episode at age 14 marked by passive "SI," and he was diagnosed with attention deficit/hyperactivity disorder (ADHD) at approximately age 12; he was hospitalized. He was released with work/duty limitations. i. Medical notes showing he was seen concerning his shoulder on 5 April 2010. j. An SF 600, dated 21 April 2010, showing he was seen by Dr. Z______ because he was having problems with one of his medications. One of his medications was discontinued and he agreed to continue therapy with Dr. T_______ and return to see Dr. Z_______ in 3 to 4 weeks. k. A memorandum from his Commanding Officer, Subject: Service Member Notification of Commanding Officer Referral for Mental Health Evaluation. He was referred because of his self-inflicted gunshot wound and numerous behavioral health problems. He acknowledged receipt on 22 April 2010. l. An SF 600, dated 26 April 2010, showing he was seen by Dr. Y___ for a "single organ system exam psychiatric." He was released without limitations and instructed to follow-up with the Psychology Clinic on 30 April 2010. m. An SF 600, dated 7 May 2010, showing he was seen by Dr. T_______ for depression and delayed PTSD. He was released without limitations to follow-up with weekly therapy for 4 months at the Psychology Clinic. 5. A Report of Mental Status Evaluation, dated 12 May 2010, provided by Dr. C____ M. Y___, Licensed Clinical Psychologist, Chief, Deployment Services, Behavioral Health Department, shows the following: a. The applicant displayed normal behavior, was fully alert, fully oriented, with unremarkable mood or affect, his thinking process was clear, with normal thought content, and good memory. b. In the opinion of the evaluator he had the mental capacity to understand and participate in the proceedings deemed appropriate by his chain of command, and he met the retention requirements of chapter 3, AR 40-501 (Standards of Medical Fitness). c. Diagnosis: * Axis I: adjustment disorder with depressed mood (chronic) * Axis II: personality disorder NOS (not otherwise specified) (primary diagnosis) * Axis III: status post-self-inflicted gunshot wound to shoulder d. Findings, in part: (1) This Soldier is mentally responsible for his behavior, can distinguish right from wrong, and possesses sufficient mental capacity to participate in administrative proceedings. (2) This Soldier's presentation combined with results of psychological testing support a primary diagnosis of personality disorder. This is stated above as NOS due to the presence of overlapping traits of several different personality disorders. (3) This Soldier's subjective report of depression, primarily related to his military service, warrants the diagnosis of adjustment disorder with depressed mood. His condition is best described as chronic, due to his pattern of emotional liability and impulsive behaviors in relation to situational stressors. (4) This Soldier reports symptoms that are highly atypical in persons with genuine psychiatric disorder, raising the suspicion of malingering. Additionally, his scores on screening measures to assess potential malingering further raise strong suspicion that he is feigning symptoms. (5) This Soldier has deployed overseas. He has reported PTSD symptoms including nightmares related to combat experiences involving the removal of dead children's' bodies while deployed. The combat-related traumatic experience (identified as the root of his symptoms) was refuted by his chain of command. e. Recommendations: (1) He is cleared for any administrative or judicial action deemed appropriate by command. (2) An expeditious separation IAW AR 635-200, Chapter 5-17 is recommended for adjustment disorder with depressed mood. He should be barred from reenlistment. 6. On 14 May 2010, the applicant's immediate commander notified the applicant of her intent to initiate separation action against his discharge under Army Regulation 635-200, paragraph 5-17, by reason of "other designated physical or mental conditions." The immediate commander stated the applicant had been diagnosed as having adjustment disorder with depressed mood and a self-inflicted gunshot wound to his shoulder. She recommended a general discharge. 7. The applicant acknowledged receipt of the separation notification memorandum. He indicated he understood the basis for the contemplated separation action and its effects, the rights available to his, and the effect of a waiver of his rights. He also acknowledged that he had been given the opportunity to consult with counsel; but he did not desire to consult with military or civilian counsel. He further acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to his. He submitted a statement on his own behalf in which he indicated there was nothing in his 4 years of service to warrant anything other than an honorable discharge. During his tour in Iraq he reenlisted to re-classify into another MOS, but his orders to attend training were cancelled so he could deploy to Afghanistan and he never complained. Unfortunately on mid-tour leave from Afghanistan he was drinking and lost control of his emotions and tried to take his own life, for this he was sorry. Other than that single act he has never been punished or been in any trouble. 8. The applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of other designated physical or mental conditions. His battalion commander recommended approval with the issuance of an honorable discharge. 9. On 27 May 2010, consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge and directed the issuance of an honorable discharge. 10. His DD Form 214 shows, on 15 June 2010, he was honorably discharged, by reason of "condition, not a disability." He had completed 4 years, 3 months, and 24 days of creditable active military service. 11. Counsel also provides: a. A statement from the applicant in which he: (1) Describes his service in the Army including his experiences in Iraq when his platoon was tasked with erecting defensive walls around Patrol Base Dog. They were attacked almost daily with small arms fire and mortars. The base was closed later because the Army could not maintain it with the constant attacks. (2) When he returned from Iraq he knew something felt different. He felt agitated and had very vivid, violent nightmares. He fought often with his wife. (3) In September 2009, he was deployed to Afghanistan. Less than two weeks after arriving he witnessed the horrific trauma that hasn’t escaped him since. He goes on to describe the incident with the civilian bus striking an IED. (4) He came home on leave from Afghanistan in January 2010. He was angry all the time and did not want to talk. He barely remembers the moments leading up to his suicide attempt. After treatment in Florida he was transferred to Fort Drum and hospitalized as a psychiatric ward patient. He was diagnosed with PTSD and depression by several doctors. Despite these diagnoses, Dr. Y___ diagnosed him with adjustment disorder with depressed mood and recommended he be separated. His company commander recommended he receive a general discharge. He decided to not fight the discharge if he was to receive an honorable discharge. He was ultimately honorably discharged based on Dr. Y___'s adjustment disorder diagnosis. b. A statement from the applicant's spouse in which she reveals that when the applicant came home from Iraq she noticed some signs that he was different. He seemed more distant and annoyed by his emotions. When the Army sent him to Afghanistan, a year and a half later, she did not want him to go. When he came home on mid-tour leave, his anger and irritability were on an entirely new scale. She barely recognized him. In January 2012, he attempted suicide. He was hospitalized and saw several doctors whose consensus diagnosis was that he was suffering from PTSD or depression related to his combat service. It is shocking to her that the Army separated him for chronic behavioral problems when he had no record of disciplinary or behavioral issues, before or during his service. He still has night sweats and terrible dreams with angry outbursts and sometimes sleepwalks. c. A sworn statement from Sergeant First Class (SFC) M_____ A. V____-P____, in which he states that on 29 September 2009, while on patrol in Afghanistan, he and his vehicle crew, including the applicant, assisted the survivors after a civilian bus hit an IED. It was a horrendous site with human remains all over the place. The applicant was assisting with the triage of the survivors. 12. His records contains a DA Form 2166-8 (NCO Evaluation Report) (NCOER) for the period 1 September 2009 through 13 March 2010. His rater marked "SUCCESS" in all areas with an overall performance and potential rating of "FULLY CAPABLE." His senior rater marked his overall performance as "SUCCESSFUL" and his overall potential for promotion as "SUPERIOR." 13. AR 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 which are sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. a. Other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired. Soldiers with 24 months or more of active duty service may be separated under this paragraph based on a diagnosis of personality disorder. For Soldiers who have been deployed to an area designated as an imminent danger pay area, the diagnosis of personality disorder must be corroborated by the medical treatment facility (MTF) Chief of Behavioral Health (or an equivalent official). The corroborated diagnosis will be forwarded for final review and confirmation by the Director, Proponency of Behavioral Health, Office of the Surgeon General (DASG-HSZ). Medical review of the personality disorder diagnosis will consider whether PTSD, traumatic brain injury (TBI), and/or other comorbid mental illness may be significant contributing factors to the diagnosis. If PTSD, TBI, and/or other comorbid mental illness are significant contributing factors to a mental health diagnosis, the Soldier will not be processed for separation under this paragraph, but will be evaluated under the physical disability system in accordance with AR 635-40. b. The condition of the personality disorder 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 evaluation for the DOD components. It is described in the Diagnostic and Statistical Manual (DSM–IV) of Mental Disorders, 4th Edition. c. In the case of Soldiers who are, or have been, deployed to an area designated as imminent danger pay area, the diagnosis of a mental condition not amounting to disability will be reviewed by the installation MTF Chief of Behavioral Health, or the equivalent, and confirmed by the Director, Proponency of Behavioral Health, Office of The Surgeon General (DASG-HSZ). 14. When a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation in accordance with Army Regulation 40-501. Separation processing may not be initiated under this paragraph until the Soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. 15. Army Regulation 635-40 establishes the Army Physical Disability Evaluation 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 or his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-1 states the mere presence of an impairment does not in 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 their office, grade, rank, or rating. b. Paragraph 3-1d states initial enlistment, induction, or commissioning physical standards are not relevant to deciding unfitness for continued military service. Once a Soldier has been enlisted, inducted, or commissioned, the fact that the Soldier may later fall below initial entry physical standards does not, in itself, authorize separation or retirement unless it is also established that the Soldier is unfit because of physical disability. c. Title 38 CFR, section 4.129 states 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%. DISCUSSION AND CONCLUSIONS: 1. The applicant's counsel contends the applicant's records should be corrected to show he was medically discharged due to physical disability with a 50% disability rating and award him the resulting benefits retroactively. 2. In the alternative, counsel requests correction of the applicant's record to show he was rendered temporarily unfit and transferred to the TDRL, with back pay and allowances, and an initial disability rating of at least 50%. 3. Counsel asserts the applicant was unlawfully and inequitably discharged from the Army for "chronic adjustment disorder" instead of being medically retired for his in-service diagnoses of PTSD and combat-related depression. 4. The applicant served two back-to-back deployments – the first one for 14 months to Iraq in 2006, and the second one for eight months to Afghanistan in 2009. Three months following his return from his second combat tour, he was administratively separated from the U.S. Army under the provisions of AR 635-200, paragraph 5-17, with a characterization of service of fully honorable. 5. He alleges that although the vast majority of his behavioral health providers diagnosed him with PTSD and depression during his time in active duty service, he was administratively separated on the basis of chronic adjustment disorder as a result of one provider’s misdiagnosis. He additionally claims that recent policy changes affirm that Soldiers separated for unfitting chronic adjustment disorder should receive a medical disability retirement. 6. On 4 March 2010, his command referred him to behavioral health for an evaluation. The behavioral health provider diagnosed him with major depressive disorder, severe. He also documented the presence of significant combat related stressors. The provider indicated these combat stressors were contributory to the applicant's depression and recent suicide attempt while intoxicated during mid-tour leave from Afghanistan. A re-evaluation in 90 days was recommended to determine his response to treatment and fitness for duty. On 7 May 2010, he was re- evaluated. He was diagnosed with depression and delayed onset PTSD. 7. Approximately one week later, on 12 May 2010, the applicant underwent a behavioral health evaluation in consideration of an administrative separation by a different provider. He received a primary diagnosis of personality disorder NOS and an additional diagnosis of chronic adjustment disorder. The provider deemed his conditions to meet medical retention standards in accordance with AR 40-501. He was psychiatrically cleared for any administrative action deemed appropriate. 8. Taking into consideration the available medical record, the applicant's first behavioral health encounter occurred in 2008 following his first deployment to Iraq. He was seen again at behavioral health in 2010 during mid-tour leave following a suicide attempt. The available medical record shows he has been consistently diagnosed with PTSD and depression during his time in active duty service, with the exception of one encounter – a mental status evaluation for administrative separation, in which he was diagnosed with personality disorder and adjustment disorder. It is possible that the diagnostic difference evident in the medical record may be due to provider variance. In view of the totality of the available record, it is safe to conclude that the applicant had been diagnosed with PTSD and depression at the time of his discharge from the Army and that these conditions likely failed medical retention standards. 9. With regard to the diagnosis of chronic adjustment disorder made on 12 May 2010, the DoD amended DoDI 1332.38 (Subject: Physical Disability Evaluation) on 10 April 2013 to be consistent with the U.S. Department of Veterans Affairs Schedule for Rating Disabilities, making chronic adjustment disorder a potentially compensable physical disability. To implement this change, Army Directive 2013-12 (Subject: Implementation of Department of Defense Policy Change Concerning Chronic Adjustment Disorder) was published on 17 June 2013. However, this policy is not retroactive. 10. Based on the available evidence, the U.S. Army Physical Disability Agency (USAPDA) should evaluate the applicant’s medical condition to determine if the applicant’s condition 6 months after placement on the TDRL warrants a permanent disability retirement. BOARD VOTE: ___x____ ___x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. retroactively placing the applicant on the TDRL for a minimum of 6 months at a 50-percent disability rating for PTSD effective the date initially separated; b. the USAPDA evaluating the applicant's medical conditions based on all available evidence to determine the appropriate final disability rating; and c. paying him all pay due. ___________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) AR20130006571 20 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140014053 19 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1