IN THE CASE OF: BOARD DATE: 25 February 2016 DOCKET NUMBER: AR20140017149 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 reconsideration of her earlier request to show she was considered by a medical evaluation board (MEB) for the purpose of qualifying for a medical discharge. 2. The applicant states: * she was activated with her U.S. Army Reserve (USAR) unit in Puerto Rico (PR) * she was in a medical hold status for 2 years before she was discharged * she should have been sent before an MEB for medical discharge * she is considered 100 percent disabled by the Department of Veterans Affairs (VA) and she receives Social Security Administration benefits 3. The applicant provides: * VA Form 21-4138 (Statement in Support of Claim) dated 23 August 2014 * A medical report from Dr. C_____ E. M_____ dated 21 August 2014 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130006683, on 7 January 2014. 2. The applicant has provided a new argument and medical documents that warrant reconsideration of her request. 3. On 17 October 1990, the applicant enlisted in the USAR. She completed her initial entry training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist). On 11 May 1991, she was honorably released from active duty service for training. 4. On 3 November 1997, she was reclassified and awarded MOS 88M (Motor Transport Operator) as her primary MOS. 5. On 16 April 1998, she was promoted to the rank/grade of sergeant (SGT)/E-5. 6. On 18 July 1998, she reenlisted in the USAR. 7. Orders M-042-0046, issued by the 432nd Transportation Company on 11 February 2003, ordered her to active duty for a period of 365 days, as a member of the 432nd Transportation Company, Roosevelt Roads Naval Station, PR, in support of Operation Enduring Freedom. 8. In February 2003, due to her ongoing medical treatment for depression, which she was receiving at the time of her unit's mobilization, she was determined to be non-deployable and she was transferred to the Medical Hold Company at Fort Buchanan, PR. 9. On 7 April 2003, she was found fit for duty and her status changed from non-deployable to deployable. Accordingly, she was transferred back to the 432nd Transportation Company. 10. On 28 April 2003, she was seen as an outpatient by the Lawrence Joel Army Health Clinic (LJAHC) Internal Medicine Clinic at Fort McPherson due to having suicidal ideations, with the following issues: * personality disorder * dependent personality disorder * panic disorder with agoraphobia * occupational problem * major depression recurrent moderate * adjustment disorder with anxiety and depressed mood * chronic major depression * anxiety disorder 11. On 9 June 2003, she underwent a physical examination. A DD Form 2808 (Report of Medical Examination) shows she was assigned a permanent "3" in the "S" (Psychiatric) category of the PULHES Factor. (The "S" factor concerns personality, emotional stability, and psychiatric diseases. A permanent "3" indicates a significant defect(s) or disease(s) are under good control.) The examining physician found her qualified for service and annotated her DD Form 2808 accordingly. 12. Orders 183-27, issued by Headquarters, U.S. Army Garrison, Fort Buchanan, PR on 2 July 2003, and amended by Orders 189-9, issued by Headquarters, U.S. Army Garrison, Fort Buchanan, PR on 8 July 2003, assigned her to the 377th Theater Support Command at Camp Arifjan, Kuwait, with a proceed date of 9 July 2003 to Iraq. It appears she attempted to proceed, but after experiencing transportation issues while enroute to Kuwait, she returned to PR. 13. As a result, she was pending a general court-martial (GCM) for desertion, being absent without leave (AWOL), missing movement, a general orders violation, and communicating a threat. 14. Orders 23-38, issued by Headquarters, U.S. Army Garrison, Fort Buchanan, PR on 2 July 2003, attached her to the U.S. Army Garrison, Fort Buchanan, PR, effective 13 July 2003, for the period 13 July 2003 through 13 July 2004. 15. On 21 July 2003, she received a psychiatric consult which stated she was receiving multiple medications for her diagnosis of major depression. 16. On 25 September 2003, she was seen at the Psychiatry Outpatient Clinic due to an incident with co-workers at Fort Buchanan. She was diagnosed with major depressive disorder, recurrent, without psychosis and remained on her current medications. 17. On 17 November 2003, her primary care physician at Fort Buchanan referred her to Roosevelt Roads Naval Hospital, PR, for the purpose of receiving a psychiatric evaluation. 18. On 26 November 2003, she was evaluated at the Roosevelt Roads Naval Station Hospital, PR. The examining staff psychologist made the following summary and recommendations: * return to full duty – the service member was psychologically fit for same, and was responsible for her behavior * while she was fit for full duty, the evaluating psychologist recommended consideration of an administrative separation based on unsuitability 19. On 2 December 2003, on a DD Form 689 (Individual Sick Slip), her primary care physician noted her fitness for duty; however, he recommended consideration of her administrative separation due to her severe inability to adjust to the demands of Army life, per her psychological assessment. 20. On 13 February 2005, she was again seen at the psychiatric clinic with the same diagnosis of major depressive disorder and anxiety disorder. 21. On 17 March 2005 and 12 April 2005, she followed-up with her assigned psychologist who, in his outpatient notes, referred to her diagnosed condition using the terms "adjustment disorder with anxiety and depressed mood," "personality disorder," and "dependent personality disorder." 22. On 17 June 2005, the applicant received a GCM for desertion, being AWOL, missing movement, a general orders violation, and communicating a threat. She was found not guilty and her case was dismissed. All rights, privileges, and property of which she had been deprived by virtue of the GCM proceedings were restored. 23. On 22 July 2005, she underwent a separation physical at Fort Benning, GA; however, the results of that examination are unavailable for review. 24. On 15 August 2005, she was honorably released from active duty and returned to her USAR troop program unit (TPU). Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 2 years, 6 months, and 5 days of net active service during this period. 25. She was honorably discharged from the USAR on 8 February 2006. 26. The applicant's complete military medical records are not available for review. 27. She provides a voluminous collection of military and VA medical records, including her VA rating decision of 31 January 2012, which shows the VA determined her major depressive disorder to be service-connected and 100% disabling. Her medical records document her extensive treatment for depression; however, they do not address her ability, or lack thereof, to perform her military duties in accordance with her MOS and grade, aside from the implications of her treatment on her ability to deploy. Her medical records do not contain recommendations from medical staff regarding her referral to an MEB. 28. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Paragraph 3-2 provides that for a member being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she is unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, renders the member unfit. b. Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line of duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training (IDT), and (2) the disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. c. Paragraph 4-9 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to an MEB. d. Paragraph 4-13 provides that those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition. 29. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent (%). Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. DISCUSSION AND CONCLUSIONS: 1. The applicant contends she should have received a MEB and been separated by reason of medical illness following her period of active military service. 2. The applicant's complete service medical records are not available for review with this case. However, the medical records she provided clearly document her struggles with major depressive disorder during the time she served on active duty. 3. There is sufficient indication, based on the available medical documentation, that her depression was severe enough to render her unable to reasonably perform the duties of her office, grade, or rank, even with proper treatment and counseling. More importantly, under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must show the disability was incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or IDT. 4. Her previous commanders, or the medical officials who treated her, did not determine her depression was severe enough to warrant her referral to an MEB. In fact, in several instances, medical officials acknowledged her fitness for duty, as well as her unsuitability based on her inability to adjust to the demands resulting from her unit's activation. However, her extensive medications, threats of suicide, and repeated hospital visits for major depressive disorder while on active duty appear to have been significant enough to have warranted a MEB. 5. Although she received various mental health evaluations stating she was fit for duty, her well-documented major depressive disorder diagnosed while on active duty status was serious enough to have warranted a MEB based on the regulations in effect at the time. The evidence appears to support granting the requested relief. BOARD VOTE: ____X___ ____X___ ____X___GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20130006683, dated 7 January 2014. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. Having the Office of the Surgeon General, if necessary, contact the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders to the applicant. b. 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 her case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should have been separated under the PDES, these proceedings will serve as the authority to void her administrative separation and to issue her the appropriate separation retroactive to her original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. ____________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) AR20090007788 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140017149 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1