IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150000040 BOARD VOTE: ____X____ ____X__ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150000040 BOARD DETERMINATION/RECOMMENDATION: 1. 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. affording him processing through the Integrated Disability Evaluation System (IDES) to determine if he should have been discharged or retired by reason of physical disability. 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 his 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 IDES, 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 changing his type of discharge without evaluation under the IDES. _____________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. IN THE CASE OF: BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150000040 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, that his previous separation from the Army National Guard (ARNG) be voided and that he be referred to the Integrated Disability Evaluation System (IDES) for disability evaluation by a medical evaluation board (MEB) and a physical evaluation board (PEB). 2. The applicant states: a. On 13 January 2014, he was maliciously, unscrupulously, and improperly discharged from the District of Columbia ARNG (DCARNG) under "normal" circumstances, despite the fact that he was clearly and undeniably suffering from a myriad of chronically disabling service-connected and combat-related medical afflictions. b. At the time of his discharge, his unit knew full well the scope and complexity of his disabling service-connected afflictions and purposely, with malice aforethought, moved to separate him from the service in a status other than "medical board/medical retirement." c. He appealed his chain of command's handling of this matter in every conceivable and imaginable way short of bearing arms, all with no justice and minimal consideration. He went so far as to contact his Senator, whose office initiated an inquiry on his behalf. d. In each instance, his former chain of command unilaterally engaged in a systemic process of lying and generally misrepresented the facts and salient circumstances surrounding his improper discharge. He is appealing to the Board for simple justice, nothing more. e. At the time of his discharge from the Army, he was suffering from chronic post-traumatic stress disorder (PTSD), which directly resulted from his deployment to Iraq during the 2009-2010 time frame. During his time in Iraq, he served in some of the most dangerous, austere, and deadly places, and under the most wretched conditions. When he returned to home station in March 2010, he was suffering from PTSD and was diagnosed as such. f. His strident pleas to his chain of command were always ignored or downplayed. It got so bad, he was hospitalized for PTSD prior to being discharged from the DCARNG. Additionally, he was deemed "Wounded Warrior Disabled - PTSD" by the Social Security Administration (SSA) for the same debilitating combat wounded/service-connected injuries that his chain of command refused to acknowledge. g. In addition to his PTSD-related medical issues that began during/after his deployment to Iraq, it is worth noting that even before he deployed he was rated at 80 percent (%) disabled by the Department of Veterans Affairs (VA) for the following service-connected conditions: * sarcoidosis of the lungs, 30% * eczema, 60% (dermatitis secondary to sarcoidosis/associated with sarcoidosis) * left knee degenerative joint disease, 10% * hypertension, 10% * sleep apnea, 50% * tinnitus, 10% h. He was suffering from all these medical issues before he deployed to Iraq. He continually asked about a medical discharge but was rebuffed each time and told that the organization needed to "keep their numbers up." He strongly believes he should have been medically retired in 2010, but he was not allowed to by his chain of command. When he returned from his deployment, his entire health situation got even worse and he spiraled downward into a state of near death. He sacrificed his body and his mind while serving in combat and it felt like nobody cared. His chain of command continued to ignore him, even as PTSD took over his life. 3. The applicant provides: * numerous medical treatment records * SSA Notice of Award * VA Progress Notes * VA service-connected compensation decision letter * two third-party statements * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * Veteran's Group Therapy Support Collective for PTSD Survivors sign-in sheets CONSIDERATION OF EVIDENCE: 1. The applicant served in the U.S. Army Reserve (USAR) from 9 August 1984 to 29 September 1985. He enlisted in the ARNG on 30 September 1985. 2. The applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) on 8 February 2005. 3. He served in Iraq from 18 June 2009 to 7 March 2010. 4. His Noncommissioned Officer Evaluation Report (NCOER) covering the period 1 November 2011 through 31 October 2012 (his last NCOER of record) shows his rater rated his overall potential for promotion and/or service in positions of greater responsibility as "fully capable." 5. His OMPF includes a DA Form 705 (Army Physical Fitness Test (APFT) Scorecard) that shows he passed a record APFT on 29 July 2012. 6. His available military medical documents, with dates ranging from January 2013 to January 2014, show he was diagnosed with: * PTSD * palpitations * depressive disorder * anxiety disorder * sarcoidosis * sleep apnea * occupational and financial stressors 7. Orders Number 015-011, issued by the DCARNG on 15 January 2014, directed his discharge from the ARNG and transfer to the USAR Control Group (Retired Reserve), effective 13 January 2014. 8. The applicant's NGB Form 22 shows he was discharged from the ARNG and transferred to the Retired Reserve because he was "Not selected for retention by a Qualitative Retention Board." 9. The DCARNG Medical Detachment Profiling Officer provided a medical summary pertaining to the applicant on 16 April 2014, wherein this official stated: a. The applicant was initially seen by a case manager in Medical Command on 23 January 2013 and reported treatment for PTSD within the last year. He reported feelings of anger, anxiety, and isolation after his return from deployment to Iraq in 2010. He stated he had been attending sessions at the Veterans Center in Washington, DC, but was referred to behavioral health by the Veterans Center for evaluation and treatment for PTSD. He had an initial session with the VA behavioral health and was awaiting follow-up counseling. It was requested that he submit a referral letter from the Veterans Center and behavioral health appointments with the VA with a suspense date of 9 February 2013. He was given a temporary S2 profile on 16 November 2012, which expired on 14 February 2013. b. The applicant reported to behavioral health for follow-up, but did not have up-to-date documentation detailing his current treatment received from the VA. He was given a suspense date by his command to provide documentation by the end of drill June 2013. On 20 November 2013, he was evaluated by medical command for sarcoidosis, plantar fasciitis, and sleep apnea and was issued a permanent profile and PULHES factors of 212111. c. During the periodic health assessment process, he was given a temporary profile on 7 December 2013 for PTSD. Per the applicant, he was diagnosed with PTSD in June/July 2013. He said he was meeting weekly with a PTSD support group and hoped to establish with a new psychiatrist at the VA. He was taking no medication and had no suicidal or homicidal ideations. He was again told to provide supporting documentation to Medical Command. d. The applicant was, however, evaluated by neuropsychologist, J. C., PhD, at the VA Medical Center for PTSD on 10 June 2013. Doctor C opined that the claimed condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. His rationale was that the applicant's post-deployment assessment was silent for any indication of PTSD or mental disorder. VA records on 8 June 2012 noted the applicant reported having some symptoms that partially satisfied the diagnosis of PTSD. He was diagnosed with anxiety disorder. In 2012, during his "PCBH" (interpreted to mean Primary Care Behavioral Health) evaluation, he endorsed having "depressed mood and loss of energy/fatigue, hypervigilance, irritability and anger, and difficulty managing his anger since returning from Iraq." He reported being exposed to hostile military fire and improvised explosive device explosions. No report of re-experiencing or avoidance. On 18 October 2013, he was referred for anger management research group. e. Given the above findings, there is insufficient supporting documentation for generating a permanent profile that would initiate a medical board review. The applicant was eligible for continued treatment and care at VA medical facilities. 10. On 10 July 2014, in response to a Congressional inquiry on behalf of the applicant, the Commanding General, DCARNG, provided a letter to the applicant's Member of Congress stating: a. The applicant's complaints centered on notification failure and disparity in agency outcome, and as a result, he has requested to be medically evaluated by the DCARNG. b. Chronological records indicate the applicant had been supported by the DCARNG Medical Command (MEDCOM) since 23 January 2013. This support entailed documenting, validating, and scheduling in order to address issues stated by him during his time of service. Per regulation, military members are responsible for ensuring any and all medical records are provided. Regrettably, he did not comply with the request of MEDCOM in a timely fashion. c. In regard to his comparison of the SSA assessment of his medical condition, this organization is not in a position to speak on behalf of an external agency. DCARNG MEDCOM's actions were solely based on the documents available. Therefore, they hope that he can find solace in the outcome of the SSA and continue to receive any required assistance. d. The applicant's request for a medical review board cannot be granted. As a retiree, he no longer falls under the DCARNG’s jurisdiction. However, he is entitled to VA support. 11. The applicant provides: a. A statement from his spouse explaining his behavior since returning from deployment due to PTSD (nightmares, insomnia, headaches, and aggressive/ violent physical behavior while sleeping). b. A letter from a Soldier in his former unit stating he witnessed certain incidents the applicant endured while serving in Iraq and the applicant's negative change in his behavior after the incidents. He also contends the incidents could have contributed to the applicant's PTSD. c. Veteran's Group Therapy Support Collective for PTSD Survivors sign-in sheets, which show he attended group therapy sessions beginning in November 2010. d. An SSA Notice of Award, which shows he is currently receiving social security benefits. e. A VA service-connected compensation decision letter, dated 14 June 2013, which shows he was granted/denied service connected disability compensation for the following medical conditions: GRANTED * tinnitus, 10 % * left eye trauma, 0% * hemorrhoids, 0% * sleep apnea with CPAP, sarcoidosis, 50% * left knee degenerative joint disease, 10% * hypertension, 10% DENIED (conditions determined not related to military service) * right hip with lower extremities arthritis * right knee condition * plantar fasciitis * myalgia and myositis * bilateral pes planus * antalgic gait with thoracolumbar spine * hearing loss * skin tags-benign cyst/growths * obesity secondary to medication * migraine including migraine variants * PTSD f. VA Progress Notes, dated 10 March 2014, which show a psychiatric diagnosis of major depressive episode, PTSD, and panic symptoms related to feelings of guilt. g. A VA rating decision letter, dated 29 December 2015, which shows he was granted a 70% service-connected disability rating for PTSD effective 22 June 2012. 12. During the processing of this case, a medical advisory opinion was obtained from the Army Review Boards Agency (ARBA) Clinical Psychologist. The advisory opinion states: a. The VA awarded the applicant 80% combined service-connected disability effective 1 April 2010 for the following conditions: sarcoidosis of the lungs, eczema, left knee degenerative joint disease, hypertension, sleep apnea, and tinnitus. At the time of his original 2010 award, PTSD was determined not related to military service so service-connection was not granted. Specifically, the VA concluded his PTSD was less likely than not incurred in, or caused by, the claimed in-service injury, event or illness. b. Important to note, however, is that the VA later corrected its records and awarded the applicant a 70% disability rating for PTSD, having determined that his PTSD was indeed service-connected. The effective date for this service-connected award was 22 June 2012. The applicant was still serving in the military during this time. c. Taking into consideration the documentation available for review at this time, the applicant's medical record reasonably supports combat-related PTSD existed at the time of his military service. A history of psychiatric hospitalization due to active suicidal thoughts is also documented. The most recent hospital admission is recorded as 12 January 2014, 3 days before the DCARNG directed his discharge and transfer to the Retired Reserve. Based on the information available at this time, it is reasonable to conclude that the applicant had PTSD that failed medical retention standards while he was in military service. The VA's 70% service-connected disability for this condition, which was effective prior to his discharge from the military, further supports this conclusion. 13. The medical advisory opinion was provided to the applicant to afford him the opportunity to reply to its contents. He replied and stated: a. He agrees wholeheartedly with the expert opinion that his disabling PTSD clearly failed to meet the medical retention standards of the Army while he was still in military service. b. Furthermore, he strongly believes that a concerted effort was made by his chain of command at Joint Force Headquarters DCARNG to maliciously circumvent the administrative guidelines with regard to providing him the medical retirement he rightfully deserves. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 2. 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. It provides that an MEB is 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 qualifications for retention based on the criteria in Army Regulation 40-501. 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 2-1 provides that the mere presence of impairment does not 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. d. Paragraph 4-10 provides that MEB's 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 criteria in Army Regulation 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement). If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. e. Paragraph 4-12 provides that each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the disability evaluation system. An informal board must ensure that each case considered is complete and correct. All evidence in the case file must be closely examined and additional evidence obtained, if required. In addition, in all informal cases, the PEB Liaison Officer of the medical treatment facility having control of the Soldier will be the counselor for the Soldier. As such, the PEB Liaison Officer is primarily concerned with the Soldier's interests. The Soldier will be made fully aware of the election options available to him or her, the processing procedures, and the benefits to which he or she will be entitled if separated or retired for physical disability. 3. Directive-Type Memorandum (DTM) 11-015 explains the IDES. It states: a. The IDES is the joint 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 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 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 requirements promulgated in DODI 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. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist VA in ratings determinations and assist military departments with unfit determinations. d. 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 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 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. e. If, after separation from service and attaining veteran status, the former service member (or his or her designated representative) desires to appeal a determination from the rating decision, the veteran (or his or her designated representative) has 1 year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction. 4. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has a disability rated at least 30 percent. Section 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent. DISCUSSION: 1. The applicant requests, in effect, that his separation and transfer to the Retired Reserve be voided and that he be referred to the IDES for disability evaluation by an MEB and a PEB. 2. The evidence of record shows he was diagnosed by the VA with several medical conditions, including PTSD, prior to or near the date of his transfer to the Retired Reserve. However, the VA concluded his PTSD was not likely to have been incurred, or caused by the claimed in-service injury, event or illness. The VA later amended their decision and granted the applicant a 70% service-connected disability rating for PTSD effective 22 June 2012. 3. Based on the VA's actions and the ARBA Clinical Psychologist’s opinion that the applicant had combat-related PTSD that existed at the time of his military service, it is reasonable to presume his PTSD condition may have failed retention standards. 4. Based on the foregoing, it appears the applicant met the criteria for referral to the IDES under the provisions of Army Regulation 635-40. At this point, it cannot be determined if he met/meets the criteria for a medical retirement/discharge or, if so, with what percentage of disability. As result, in the interest of equity, it would be appropriate to now process him through the IDES. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150000040 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150000040 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2