IN THE CASE OF: BOARD DATE: 28 April 2016 DOCKET NUMBER: AR20140019671 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, the following: * a medical disability separation through a medical evaluation board (MEB) for post-traumatic stress disorder (PTSD) * a personal appearance before the Board 2. The applicant states: a. The officer evaluation report (OER) he received as a company commander was written as a form of reprisal towards him for stating that he was going to file a complaint against his battalion commander with the Equal Opportunity Office. He was separated because he was not select for promotion to major by two mandatory promotion boards. He can reasonably assume his separation was the result of this OER and the Inspector General (IG) complaint he filed against the Fort Meade and Aberdeen Proving Ground Medical Community regarding his not being processed through an MEB. He had a permanent profile (P-3) and should have received an MEB. b. He fought against the terrorists that attacked our Nation. He signed up to fight and put his life on the line for our country and he did so by joining the Army's infantry branch as an officer. The Army requested he enter the service as a combat arms officer. Over 300 African American cadets were accosted in an effort to win the hearts and minds of their class of African American officers. The overwhelming perception of the African American community in America is that they believe that being assigned to the combat arms will not be rewarded in the future upon their separation from the Army. Many said, "Combat Arms is for the white man and a black man has no place there." c. He was appointed in the rank of second lieutenant (2LT), infantry branch, and immediately he was requested to change his appearance by shaving off his mustache. He had been in the military for over 10 years prior before being assigned to this branch and not once was he ever asked to remove his mustache. Where he comes from a mustache is about as sacred as Jewish man's Kippah. So, needless to say he feels he had already become a target. The infantry is a small community especially at the officer level and if you are black it becomes an even smaller community. d. He entered Ranger School following the Infantry Officer Basic Course (OBC) and spent 6 weeks there. He was dropped from the school with only 2 weeks remaining with little more than a fleeting opportunity to return after 6 months. Many people get an opportunity to recycle a phase because of the mistakes that they made. He made the mistake of not drinking enough water and suffered a little dehydration only to be put out and banned from recycling a particular phase and then graduate. He was told that he had been ordered to Fort Bragg, NC, for his next assignment without a reason. The leadership at the school fought to allow him the privilege to graduate, but they were shot down by a senior Army officer. His orders for Ranger School were cancelled and he had no choice but to pack-up his family and leave Fort Benning, GA, 2 months earlier than planned. e. He had returned from a 12-month deployment in support of Operation Iraqi Freedom where he served as a platoon leader. He was awarded the Bronze Star Medal for his efforts. He was a combat leader which meant he fought and commanded literally in combat situations and earned the Combat Infantryman Badge. He moved forward in his career and accepted more schooling to enhance his career. He attended the Maneuver Captains Career Course (MCCC) to prepare for a company commander position at his next assignment. f. When he was a company commander his brigade commander felt it was necessary to come down on him to improve and get better, but it was unclear to him as to what he needed to improve. He was counseled during an officer's call with his battalion and brigade commander. He had previously been asked to step down, but he held his ground and didn't. He politely told his battalion commander that unless he had done something wrong he would not relinquish his command. They continued to have a working relationship, which became to put it mildly, a fight for his survival as a commander, infantryman, and an officer. g. Before he completed his time as a company commander, he was finally accused of rigging his company's statistics for basic rifle marksmanship (BRM) qualifications by asking his Soldiers to use unexploded rounds lying next to their positions during BRM qualifications. At the end of this command assignment, he believes he received the OER that ended his career. h. The final reason he believes his records are in error is because he struggled with PTSD throughout all of his ordeals and not once did anyone recognize that he was suffering. People noticed his symptoms (i.e., uncontrollable crying, anxiety attacks, and angry outbursts) but no one ever questioned what was wrong. He never considered getting help until it began to hurt his family relationship. His wife was about to leave him and he became depressed. He was so depressed that he questioned his ability to live and what it would be like to end his own life. i. One day he decided to see someone about suicide. He had heard so many stories about Soldiers who had committed suicide after repeated deployments and he felt that he had fallen low enough to get checked out properly. He decided to quit hiding his pain and in 2011 he received mental health care. He sought a second opinion and connected with the right person who was able to discern that he was suffering from PTSD. j. He had orders for the 1st Brigade, 82nd Airborne Division after he completed the MCCC. Because he was being sent there, he knew in his heart that something more was going on with him. Afterwards, he was placed on a P-3 profile. All this occurred after he submitted his original complaint [discrimination]. There is no way he should have been separated without an MEB. He had every right to determine what was wrong with him before he was kicked out of the Army. 3. The applicant provides copies of a DA Form 67-9 (OER) and a letter to a Member of Congress. CONSIDERATION OF EVIDENCE: 1. With prior enlisted service in the Army National Guard, the applicant was appointed in the U.S. Army Reserve (USAR) as a 2LT on 8 August 2003. He was ordered to attend the Infantry OBC and entered active duty. He held the areas of concentration of 11A (infantry) and 51A (systems development officer). He was promoted to captain (CPT) on 1 October 2006. 2. He served in Iraq from 15 January 2006 through 15 January 2007. 3. His records contain and he provided a copy of a DA Form 67-9 which shows he received an "Annual" OER, for the period from 29 November 2006 through 28 November 2007, for his duty performance as the Company Commander of the Basic Combat Training Company consisting of four platoons and a company headquarters. His rater was Lieutenant Colonel JFL and his senior rater (SR) was COL MAC. The OER shows in: a. Part II(d) (Authentication) – (This is a referred report, do you wish to make comments?) does not contain a checkmark in the block indicating the SR did not identify the report as a referred report. b. Part IV (Performance Evaluation – Professionalism) the rater placed an "X" in each "Yes" block. c. Part IVb (Leader Attributes/Skills/Actions) the rater placed an "X" in each "Yes" block. d. Part Va (Performance and Potential Evaluation) the rater placed an "X" in the "Satisfactory Performance, Promote" block and entered the following comments: [Applicant's] company holds the highest Army Physical Fitness Test average in the Battalion and during the last cycle, achieved the highest number of expert rifleman scores during BRM. His company continues to perform outstanding under his leadership as evidenced by the latest Post SAV inspection (99%) and his cadres have experienced no disciplinary discrepancies. Bravo Company also had the lowest number of heat related evacuations for the high temperature period of last summer. He assisted in the development of over 60 Officer Candidate School candidates and 580 Soldiers with a 90% graduation rate. He volunteered to take on the next 9-week cycle of training when one of his fellow company commander's facilities was under renovation. He had also assumed the difficult task of his company being the Battlefield First Responder Subject Matter Expert for the battalion. Send to Maneuver Captains Career Course immediately after change-of-command. e. Part Vc (Comment on Potential for Promotion) his rater entered the following comments: Promotion certain upon completion of additional company-grade experience. Would serve the Army best in Maneuver Fires and Effects (MFE/11). f. Part VII (SR), the SR placed an "X" in the "Best Qualified" block and entered the following comments: [Applicant] has performed admirably in the tough Basic Combat Training environment as a Company Commander. He has gained more experience through each of the three cycles that we have had his leadership and this has steadily improved their performance. I expect his company to continue to perform well as he continues to further develop his leadership and management skills. His attendance at the Maneuver Captains Career Course in March will improve his opportunities to contribute in positions of greater responsibility. g. Part VIIb, the SR did not evaluate him in comparison to the other 27 officers in the same grade that he senior rates. The SR lists the following three future assignments for which the applicant was best suited: Battalion Staff Officer, Reserve Officers' Training Corps Instructor, and Military Transition Teams Officer. The SR stated the applicant would best serve the Army in MFE/11. 4. The OER was signed by the rater, SR, and applicant on 21 December 2007. 5. He served in Afghanistan from 11 June 2010 through 11 July 2011. 6. He was honorably released from active duty in the rank of CPT on 1 September 2013, under the provisions of Army Regulation 600-8-24 (Personnel General – Officer Transfers and Discharges), paragraph 2-37, by reason of non-selection for permanent promotion with entitlement to involuntary separation pay. He was transferred to the USAR Individual Ready Reserve (IRR). He was credited with completing 10 years and 24 days of net active [commissioned] service during the period covered by this DD Form 214 (Certificate of Release or Discharge from Active Duty). 7. He was appointed in the USAR to the Chemical Branch as a CPT on 2 September 2013. This appointment is for an indefinite term. 8. The U.S. Army Human Resources Command issued the following orders on/for: a. Orders Number B-06-403421, dated 18 June 2014, promoting him to major (MAJ) in the USAR with an effective date and date of rank of 30 May 2014. The orders indicated his promotion was a result of his reaching the maximum time in grade (TIG) and he must be assigned to a higher grade position in accordance with Army Regulation 135-155 (Army National Guard and USAR, Promotion of Commissioned Officers and Warrant Officers, Other Than General Officers), paragraph 4-9. b. Orders Number C-10-414566, dated 17 October 2014, assigning him to the USAR Control Group (Reinf) effective the same day. 9. A review of his records located on the Interactive Personnel Electronic Records Management System failed to reveal a DA Form 3349 (Physical Profile) showing he was assigned a P-3 profile during his period of active duty. This review also did not reveal evidence he no longer met the Army medical standards for retention based on any medical condition(s) in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. His Officer Record Brief shows his profile as "1" in each of the six categories and the date of his last physical exam as 27 February 2012. 10. He also provided copies of the following: * letter wherein he requested assistance from a Member of Congress pertaining to his separation from the Army without the benefit of an MEB for PTSD with anxiety and depression as a result of his IG complaint * letter wherein the Member of Congress advised him that an inquiry into his request had been initiated and he would be further advised as soon as information became available 11. In the processing of this case, an advisory opinion was obtained from the Chief, Behavioral Health Division of the Office of the Surgeon General (OTSG). a. The advisory official stated that the applicant's medical records indicated he sought behavioral health (BH) treatment in May 2011 for a "long history of anxiety which became significant after two deployments." He was seen regularly for therapy and medication management until his discharge. According to BH progress notes, he responded well to treatment, with mood and behavior significantly improved. b. In July 2013, psychological testing was administered and the applicant was diagnosed with major depressive disorder, moderate and anxiety disorder not otherwise specified. The examiner noted that he did not fulfill the re-experiencing criterion for PTSD. Later that month he was referred for an MEB by his primary care provider. c. There are conflicting reports as to what became of the MEB referral, with one source stating that the Integrated Disability Evaluation System (IDES) examiner spoke to the applicant to inform him that he did not meet the medical retention determination point and another concluding that he was denied due process. Regardless of the circumstances, the medical record indicates a steady improvement in his mental health from the start of treatment in 2011 and there is no evidence that he was medically/physically unfit for duty. d. The advisory official opined that the applicant's BH history and diagnoses were duly considered during his separation processing. Therefore, that office found that the applicant was medically fit for duty at the time of separation and did not qualify for separation due to physical disability. 12. The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. In his response he stated that the fact remains that his primary care physician referred him to an MEB for major depressive disorder (mood disorder), moderate and anxiety disorder while he was in the Army and, he is considered 70 percent service-connected disabled with PTSD today. He also stated that he received a Combat Infantryman Badge and Bronze Star Medal for the actions he took during a time of war. He further stated that simply put, it is likely that he was suffering from PTSD at the time of his discharge processing. 13. He included a DA Form 3349 (Physical Profile) with his response. Though the doctor marked referable for an MEB, the document does not contain the approval authority's signature and date. 14. Army Regulation 600-8-24 prescribes the policies and procedures governing the transfer and discharge of Army officers. Paragraph 2-37 of the regulation states Reserve commissioned officers serving on active duty as commissioned officers, who fail a second time to be selected for promotion to the permanent Reserve grade of MAJ will be discharged on the 120th calendar day after receipt of involuntary release notification. Officers with a remaining service obligation will be transferred to the IRR. 15. Army Regulation 135-155 sets the policies used for selecting and promoting commissioned officers. The regulation states for mandatory Reserve of the Army promotions eligibility is based on TIG. Promotion to MAJ requires completion of a maximum of 7 years TIG in the lower grade. 16. Army Regulation 40-501 governs medical fitness standards for retention and separation, including retirement. Chapter 3 of the regulation gives the various medical conditions and physical defects which may render a Soldier unfit for further military service. 17. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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 her office, grade, rank, or rating. The regulation states: a. The PDES assessment process involves two distinct stages: the MEB and the physical evaluation board (PEB). The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. b. In paragraph 3-1 that the mere presence of a medical impairment does not in and 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 may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. c. In paragraph 3-2b (processing for separation or retirement from active duty) that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. The presumption of fitness may be overcome if the evidence establishes that— (1) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. (2) An acute, grave illness or injury or other significant deterioration of the Soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty. 18. Directive-type Memorandum (DTM) 11-015, dated 19 December 2011, explains the IDES and states: a.  The IDES is the joint Department of Defense (DOD)-VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b.  Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 and the Under Secretary of Defense for Personnel and Readiness Memoranda. All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c.  Upon separation from military service for medical disability and consistent with Board for Correction of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR. 19. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR), paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. With regard to a medical disability separation through an MEB: a. The evidence of record shows the applicant served on active duty from 8 August 2003 through 1 September 2013. He was promoted to CPT on 1 October 2006. His record contains a DD Form 214 that shows he was honorably discharged from active duty under the provisions of Army Regulation 600-8-24, paragraph 2-37, by reason of non-selection to permanent promotion, and was transferred to the USAR Control Group (IRR). He was subsequently selected and promoted to MAJ in the USAR. b. The issuance of a discharge under the provisions of Army Regulation 600-8-24, paragraph 2-37, required his discharge based on his twice non-selection for promotion. It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. He has provided no evidence that would indicate the contrary. c. The OER he submitted with his application clearly shows he was competent and successfully performed his duties as a company commander and he was noted for his high quality/outstanding leadership and performance. There is no evidence that the OER was issued in reprisal of his filing an IG complaint. There is also no evidence of record and he did not provide sufficient evidence showing he was erroneously or unjustly denied promotion to MAJ during his period of active duty. d. There is no evidence of record and he provided none that shows he was physically unfit at the time of his separation. A Soldier is considered unfit when the evidence establishes the Soldier is unable to reasonably perform the duties of his or her office, grade, rank, or rating. Though his primary care physician may have referred him for an MEB, the approving authority did not certify that recommendation. Further, the applicant's medical records indicated he sought BH treatment in May 2011 for a "long history of anxiety which became significant after two deployments." He was seen regularly for therapy and medication management until his discharge. According to BH progress notes, he responded well to treatment, with mood and behavior significantly improved. e. A recent VA service-connected disability rating for PTSD is not sufficient to establish that he had PTSD, which was severe enough to find him unfitting at the time of his separation in September 2013. He has failed to show through the evidence submitted or the evidence of record that he was medically/physically unfit at the time of separation and should have been processed for separation due to physical disability. 2. With regard to his request for a personal appearance before the Board, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ _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) AR20140019671 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140019671 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1