IN THE CASE OF: BOARD DATE: 19 January 2016 DOCKET NUMBER: AR20140014719 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 that he be granted a Medical Evaluation Board (MEB) and that his discharge be changed from an administrative discharge to a medical retirement. 2. The applicant states he was given an administrative discharge for an adjustment disorder. However, he believes that he should have gone before an MEB and that he should have been medically retired for post-traumatic stress disorder (PTSD). 3. The applicant provides: * Department of Veterans Affairs (VA) medical records * Military medical records * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 1 February 2000, the applicant enlisted in the Regular Army (RA). After initial training, he was awarded military occupational specialty (MOS) 96B (Intelligence Analyst). 3. The applicant’s DD Form 214 shows he served in: * Iraq from 11 May 2003 to 1 September 2003 * Kuwait from 26 November 2001 to 7 July 2002 and from 4 December 2000 to 30 June 2001 4. The applicant’s record is incomplete; however, supporting documentation was provided by the applicant. 5. A Memorandum for Commander from a behavioral health provider, dated 17 November 2003, documents a recommendation for administrative separation on the basis of the following diagnoses: * adjustment disorder * rational problems * PTSD post robbery and assault 6. The applicant had reportedly been robbed, assaulted and stabbed while at an ATM prior to his deployment to Iraq in 2003 and underwent surgery to repair the damage sustained to his kidneys. Subsequently, increasing intrapersonal difficulties began to surface during his three deployments, with a resulting overdose of pills. A mental status evaluation by the same provider approximately two weeks later (4 December 2003) recommended his administrative separation on the basis of adjustment disorder and relational problems. 7. On 4 December 2003, he received another mental health evaluation from the same facility in Landstuhl, Germany, by the same psychologist. The evaluation showed he was diagnosed and being treated for an adjustment disorder with depressed mood, relational problems not otherwise specified (NOS), and personality disorder traits as early as September 2003. In the evaluation, the doctor stated the applicant was medically fit for duty and did not warrant disposition through medical channels. However, the personality disorder represented an ingrained, maladaptive personality style that was life-long and that would not respond to treatment. He continued receiving treatment up to his date of discharge. 8. The separation package contained in his official military personnel file is incomplete; however, the record does show his commander notified him that he was initiating action to separate him under the provisions of paragraph 5-17 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). The commander stated the reason for his proposed separation action was because he was diagnosed with an anxiety disorder, NOS. 9. The commander also advised him of his right to: * consult with legal counsel prior to completing his acknowledgement * a hearing before an administrative board if he had 6 or more years of active and reserve military at the time of separation * submit a statement in his own behalf * obtain copies of documents that would be sent to the separation authority * waive any of these rights * withdraw any waiver at any time prior the separation authority approving her separation 10. The available evidence does not include a copy of his election or waiver of his rights. 11. The applicant's commander recommended him for separation under the provisions of paragraph 5-17 of Army Regulation 635-200. The commander stated the applicant had been diagnosed with an anxiety disorder, NOS. He stated the Soldier had been counseled and through subsequent behavior, had demonstrated a lack of acceptance of rehabilitative measures. He stated the Soldier's condition interfered with assignment to or performance of duty. 12. The appropriate authority approved the recommendation for discharge and directed he be furnished an Honorable Discharge Certificate. 13. On 21 February 2004, the applicant was honorably discharged due to a physical condition, not a disability. He was credited with 4 years and 21 days of net active duty service. 14. A review of the available records failed to show any indication that the applicant was evaluated through the Physical Disability Evaluation System (PDES). 15. Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, provided information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Paragraph 3–33 (Anxiety, Somatoform, or Dissociative Disorders) states persistence or recurrence of symptoms resulting in interference with effective military performance is a cause for referral to an MEB. 16. Army Regulation 635-200, paragraph 5-17, provides commanders with the authority to approve separations under this paragraph on the basis of other physical or mental conditions not amounting to disability and excluding those personnel who did not meet procurement medical fitness standards and those diagnosed with a personality disorder. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. 17. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. 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. 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. 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. 18. Army Regulation 635-40 states that 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. DISCUSSION AND CONCLUSIONS: 1. The applicant had been receiving treatment for an adjustment disorder with depressed mood, relational problems NOS and PTSD, since September 2003. Therefore, he was also diagnosed with PTSD at one point. The persistence and recurrence of his symptoms interfered with his military performance of duty. He clearly should have been referred for processing through the PDES, warranting a referral to an MEB. 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. 2. It was unknown why PTSD was no longer part of the applicant’s diagnostic picture, as it was not clearly documented in the clinical write-up. Taking into consideration the available medical record, it is safe to conclude that the applicant had an active diagnosis of PTSD at the time of his discharge from the U.S. Army and that these conditions likely failed medical retention standards. 3. Accordingly, the 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 pay and allowances and/or retired pay due him, if any. 5. In the event that 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. 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. 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 to voiding his discharge without undergoing evaluation under the PDES. _______ _ 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) AR20120015766 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140014719 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1