IN THE CASE OF: BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20150000176 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ____x___ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20150000176 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by: a. directing the U.S. Army Human Resources Command, Fort Knox, KY, National Guard Bureau, and/or Florida Army National Guard to: (1) suspend his resignation as a Reserve officer of the Army, withdrawal of Federal recognition, discharge from the Army National Guard of the United States, and discharge from the Florida Army National Guard and place him in an excess leave status effective 1 August 2013 for an indefinite period pending: (a) review of his voluntary resignation in lieu of elimination for compliance with the governing Army regulatory guidance (e.g., processing, procedures, and approval authority) and (b) his processing through the Integrated Disability Evaluation System (IDES). (2) complete a formal line of duty investigation based on the incident that occurred on 8 April 2013; and (3) determine his eligibility for non-regular retirement based on qualifying years of creditable service. b. affording him processing through the IDES to determine if he should have been discharged or retired by reason of physical disability. IDES processing should consider all available medical records related to the applicant's medical history, including the proceedings of any Medical Evaluation Boards, Physical Evaluation Boards, Army Board for Correction of Military Records of Proceedings (along with all advisory opinions), and medical records/documents provided by the applicant. (1) In the event that a formal Physical Evaluation Board (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. (2) 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. (3) Notify the Army Review Boards Agency, Army Board for Correction of Military Records, of the results of the IDES process. c. In the event the applicant is to be placed on the permanent retired list based on permanent disability or qualifying creditable service, the Army Review Boards Agency, U.S. Army Grade Determination Review Board, Arlington, VA, will review the applicant's military service records for a determination of his retired grade of rank. (The effective date of any such retirement to be retroactive to 1 August 2013.) d. In the event the applicant is not found medically unfit for further military service and he is not authorized non-disability retirement (transfer to the USAR Control Group, Retired Reserve), the U.S. Army Human Resources Command, Fort Knox, KY, and the National Guard Bureau in concert with the Florida Army National Guard will initiate appropriate action to effect his separation and discharge. 2. The Board further determined 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 reinstatement as a Reserve officer of the Army and extension of Federal recognition in the Army National Guard of the United States, Active Guard/Reserve program, and the Florida Army National Guard; active duty back pay; and permanent retirement and back pay (i.e., pending results of the actions directed by the Board above). 3. The Board recommends the Defense Finance Accounting Service be notified of this correction pending the results of any further correction of his records. _____________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: 21 June 2016 DOCKET NUMBER: AR20150000176 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, correction of his military records by voiding the administrative separation process that resulted in his discharge under other than honorable conditions; reinstatement as a member of the Active Guard/ Reserve (AGR) program and extension of Federal Recognition (FEDREC) with all active duty back pay and allowances; processing through the Integrated Disability Evaluation System (IDES); and honorable retirement from the Army National Guard (ARNG), either administratively or based on permanent disability due to his unfitting medical conditions of post-traumatic stress disorder (PTSD) and mild-traumatic brain injury (mTBI). 2. The applicant states FEDREC was erroneously withdrawn while he was serving in the AGR program. a. Prior to his mobilization for the period of service under review he served as a mechanized infantry platoon leader, rifle company platoon leader, support platoon leader, rifle company executive officer, divisional liaison officer, battalion and brigade administrative officer, and brigade assistant training officer. b. He states that in 2003 he deployed with his unit to Fort Lauderdale, FL, in support of Operation Safe Skis for about 6 months. His unit moved to Fort Stewart, GA, for 30 days of mobilization training and then deployed to Ramadi, Iraq. During the deployment his unit was engaged in daily contact with the enemy (both direct and indirect fire). On 26 August 2003, his vehicle suffered a hit from an improvised explosive device (IED) that knocked him unconscious for a short time. He states that his mental capacity has never been the same since the incident. He adds that he never reported any injuries. c. He redeployed in March 2004 and he has suffered from physical, mental, and behavioral health issues (BHI). He states, "I have lied on every physical readiness event since my return." He also states this is due to a senior officer telling him that adverse mental health responses would have a negative impact on his career. He adds he has a copy of his post-deployment health assessment that he initially completed, but did not turn in, and the one that he did turn in. d. In July 2004, he indicated he was having mental concerns, which were dismissed as part of the normal adjustment, and he did not pursue the matter. e. He states he received favorable Officer Evaluation Reports and numerous awards during his military career, and he completed the required Intermediate Level Education. f. He served as Executive Officer for Overseas Deployment Training in support of Operation Inspired Gambit in Pakistan for 28 days. He notes that he had issues involving high anxiety, panic attacks, memory loss, communication, physical fitness, mental processing, lack of energy, weight gain, and depression; however, he deployed despite the issues. g. He completed a second deployment to Kuwait in 2010 as Executive Officer for both Camp Buehring and Security Force North. He states that his symptoms began to manifest during this deployment. He failed to make conference calls, missed meetings and timelines, and also blanked out when briefing. He adds, "[r]egardless, both missions excelled in so many ways receiving accolades from all chains of command." Shortly thereafter, he received notification that he was selected for promotion to lieutenant colonel (O-5). h. He states his wife and son were living with a bitter man who isolated himself more and more. In 2009, he had a complete breakdown of moral, ethical, spiritual, physical, and behavior problems. He hit an all-time low in late 2012 and early 2013. He missed a lot of work and he had thoughts of suicide. He sought help for his physical issues, but not for his BHI. He recounts incidents of confusion, loss of memory, panic attacks, lack of trust of others, and anger. i. He states that he was processed for withdrawal of FEDREC while in the AGR (Title 32) program following a civil arrest (on 5 April 2013) for downloading child pornography. He states that he cooperated and admitted to deleting the files and file sharing program. He also states he was downloading adult pornography as a means of avoiding his wife and emotions. He adds the arrest was not the reason for the suicide attempt; it was a culmination of everything. j. On 8 April 2013, he attempted suicide by cutting both of his wrists over 40 times and severing most of his tendons and nerves. He also took 100 tablets of Tylenol PM and dragged himself under his running Jeep in his closed garage. His wife and son found him more than 7 hours later. He was admitted to the hospital and received extensive inpatient and outpatient treatment for his BHI. k. His brigade commander informed him that he could submit his voluntary resignation from the AGR program. He states he was unaware the Florida ARNG (FLARNG) had submitted a request to have his FEDREC withdrawn. l. On 10 June 2013, he received a memorandum from the Commander, First U.S. Army, that notified him to select one of three options: (1) retire, if eligible; (2) show cause for retention before a board of officers convened for that purpose; or (3) submit a resignation in lieu of proceedings for withdrawal of FEDREC. He states he was not eligible to retire – a Judge Advocate General’s Corps officer confirmed this – and the brigade commander told him the Adjutant General (AG) would not support his retirement. He elected to resign and he did not attach any other response to the notification. He states he was in no condition to face a Show Cause Board and he was not advised that he could request retirement based on his 27 years in the ARNG. m. He completed only about 5 weeks of outpatient therapy for PTSD before the therapist recommended immediate inpatient therapy at the end of July 2013. He states that he could not go to inpatient therapy because of his discharge orders from the AGR program. n. On 30 July 2013, he submitted a letter to the FLARNG AG requesting a delay in the administrative processing of his resignation in order for him to remain on active status to continue his medical treatment and go before a Fitness for Duty Board. He states he had received a diagnosis of PTSD and mTBI by competent medical authority. However, on 31 July 2013, he was separated from the AGR program. Then, on 7 October 2013, he was discharged from the FLARNG under other than honorable conditions. This occurred without him being processed by a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB). o. He has continued to receive medical treatment through the Department of Veterans Affairs (VA). p. He states the Florida National Guard (NG), Office of the Inspector General (IG), responded to his official complaint and determined that the: * FLARNG failed to comply with: * Army Regulation (AR) 600-8-4 (Line of Duty (LOD) Policy, Procedures, and Investigations), paragraph 2-3c(3), that mandates a formal LOD investigation (LODI) be conducted in cases of self-inflicted injuries or possible suicide * AR 40-501 (Standards of Medical Fitness) that requires a physical profile while undergoing evaluation for medical, mental, and BHI * AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-4, that requires simultaneous processing for administrative separation and through the IDES due to unfitting conditions * National Guard Regulation (NGR) 600-5 (The AGR Program Title 32, Full-Time National Guard Duty (FTNGD) Management), paragraph 6-2a, that required completion of a formal LODI prior to processing his request for voluntary removal from the AGR * NGR 635-101 (Personnel Separations – Efficiency and Physical Fitness Boards) in the processing of the withdrawal of FEDREC action pertaining to the applicant * National Guard Bureau (NGB) failed to comply with NGR 635-100 (Personnel Separations – Termination of Appointment and Withdrawal of FEDREC) in the processing of the withdrawal of FEDREC action pertaining to the applicant q. The Deputy IG concluded that his office cannot direct action to restore the applicant to active status, overturn the withdrawal of FEDREC, or restore him to AGR duty. He advised the applicant that he must petition the Army Board for Correction of Military Records (ABCMR) to address these issues. r. The applicant states he requested a copy of the investigation conducted by the Office of the IG; however, a complete copy could not be provided at the time. s. He also indicated his willingness to attend in person or by telephone for any Board, if deemed necessary for clarification. 3. The applicant provides two self-authored statements, dated 21 December 2014 and 31 October 2015 (both summarized above); Florida NG, Office of the IG, letter, dated 4 November 2014 (summarized above); his discharge orders; and medical records. CONSIDERATION OF EVIDENCE: 1. The applicant had prior honorable enlisted service in the ARNG of the United States (ARNGUS) and the Mississippi ARNG (MSARNG) from 27 November 1985 through 7 August 1992. 2. He was appointed as a Reserve officer of the Army (Infantry) in the ARNGUS and the MSARNG, in the rank of second lieutenant, on 8 August 1992. He transferred to the FLARNG on 31 August 1993. He entered the AGR program on 4 November 1998. 3. He served in Iraq in support of Operation Iraqi Freedom from 9 May 2003 to 5 March 2004. 4. He was promoted to major/pay grade O-4 on 25 January 2005. 5. State of Florida, Office of the AG, Saint Augustine, FL, memorandum, dated 2 December 2005, shows the Deputy Chief of Staff Personnel notified the applicant that his eligibility for retired pay had been established upon attaining age 60. 6. Florida NG, Office of the AG, Saint Augustine, FL, Orders P355-031, dated 21 December 2010, ordered the applicant to FTNGD in AGR status on 24 December 2010 with an active duty commitment of 5 years and 6 months (through 23 June 2016). The additional instructions show the applicant would be in a Federal status during this period and would be subject to the Uniform Code of Military Justice. 7. A DA Form 67-9 (Officer Evaluation Report) for the period 2 January 2012 through 2 December 2012 shows the rater indicated that the applicant possessed the Army Values and Leader Attributes/Skills/Actions and he assessed his performance and potential for promotion as "Outstanding Performance, Must Promote." The senior rater evaluated his promotion potential to the next higher grade as "Best Qualified" and rated his potential compared with officers senior rated in the same grade as "Center of Mass." 8. Florida NG, Office of the AG, Saint Augustine, FL, Orders 149-01, dated 30 May 2013, honorably released the applicant from active duty in AGR status, effective 31 July 2013, and returned him to Headquarters and Headquarters Troop, 1st Squadron, 153rd Cavalry, Panama City, FL. The authority cited is NGR 600-5, Chapter 6 (Separation), and Verbal Orders of the AG, FLARNG. 9. Florida NG, Office of the AG, Saint Augustine, FL, Orders 149-02, dated 30 May 2013, amended Florida NG, Office of the AG, Saint Augustine, FL, Orders P355-031, dated 21 December 2010, by changing the applicant's active duty commitment to 2 years, 7 months, and 8 days (i.e., 24 December 2010 through 31 July 2013). 10. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was ordered to active duty as a member of the ARNGUS on 24 December 2010, honorably released from active duty on 31 July 2013, and transferred to a FLARNG unit. He had completed 2 years, 7 months, and 7 days of net active service this period. It also shows the separation authority as AR 600-8-24 (Officer Transfers and Discharges), paragraph 2-7 (Completion of required active service), with Separation Program Designator code "MBK" (completion of required service). 11. Florida NG, Office of the AG, Saint Augustine, FL, Orders 281-096, dated 8 October 2013, separated the applicant from the FLARNG and as a Reserve officer of the Army, effective 7 October 2013, with an under other than honorable conditions discharge, based on his conditional resignation in lieu of elimination. The authority cited is NGR 635-100, paragraph 5a(25). 12. NGB, Washington, DC, Special Orders Number 321 AR, dated 3 December 2013, announced withdrawal of the applicant's FEDREC status in the ARNG, effective 7 October 2013. 13. An ARNG Current Annual Statement of Retirement Points, dated 5 November 2013, shows the applicant's service from 27 November 1985 through 7 October 2013. He earned 6,954 total points for retired pay and had 27 years, 10 months, and 11 days of creditable service for retired pay. It also shows he served continuously in the ARNG: * as a member of the AGR program (including in a mobilized status) from 4 November 1998 through 31 July 2013 * as a Troop Program Unit member from 1 August 2013 through 7 October 2013 14. A review of the applicant's military personnel records failed to reveal evidence of a LODI or physical profile pertaining to an incident involving an IED explosion on 26 August 2003 or a self-inflicted injury occurring on 8 April 2013, MEB/PEB proceedings, or an administrative separation packet. 15. In support of his application the applicant provides: a. Florida NG, Office of the IG, Saint Augustine, FL, letter, dated 4 November 2014, subject: Request for Assistance NFL 14-0085, that was summarized in the applicant's statement (above). b. Copies of the following medical records pertaining to the applicant: (1) Records from Emerald Coast Behavioral Hospital, Outpatient Service, Panama City, FL, that span the period from 30 April through 5 June 2013. James P. B___, Medical Doctor, confirmed that he made the diagnosis of PTSD based on the applicant's combat time in Iraq (in 2004) and related symptoms. He added that the PTSD had nothing to do with the applicant's legal proceedings. The medical records also show: * Diagnostic Impressions (30 May 2013) – * AXIS I (Clinical Disorders): * PTSD, chronic * adjustment disorder with depressed mood secondary to his legal problems * AXIS II (Personality Disorders): No diagnosis * AXIS III (Physical Disorders): Status post suicide attempt * AXIS IV (Psychosocial Disorders): * chronic PTSD from deployments * job stress * legal problems * AXIS V (Global Assessment of Functioning (GAF)): Score: 55 (2) Two Certificates of Completion that show he completed the: * PTSD Intensive Inpatient Program, Psychosocial Residential Rehabilitation Treatment Program, VA Gulf Coast Veterans Health Care System, on 11 October 2013 * PTSD Intensive Outpatient Program, Psychosocial Residential Rehabilitation Treatment Program, VA Gulf Coast Veterans Health Care System, on 11 December 2013 (3) Records from the VA, Gulf Coast Veterans Health Care System, Panama City, FL, with a Problem List that spans the period from 1 August 2013 through 6 August 2014 (last updated on 12 October 2015) and records that include his medication history, mental health records, neurological records, and laboratory results. The medical records also show: * Primary Care Provider Clinic Note (4 September 2013), Past Medical History – * anxiety * depressive disorder * PTSD * TBI * migraine * bilateral inguinal hernia * sensorineural hearing loss * PTSD Clinical Team Notes (13 September 2013) – * AXIS I: * PTSD * major depressive disorder, recurrent * AXIS II: Deferred * AXIS III: * hyperlipidemia * chronic pain * auditory deficit * personal history of TBI * AXIS IV: * family/primary support group * financial * occupational * AXIS V: GAF Score: 52 * Psychosocial Residential Rehabilitation Treatment Program, Recreation Therapy Note (7 October 2013), Diagnosis: PTSD * Discharge Diagnoses (11 December 2013): PTSD * AXIS I: * PTSD * major depressive disorder, recurrent, moderate * AXIS II: deferred * AXIS III: refer to medical chart * AXIS IV: support, financial, occupational * AXIS V: GAF Score: 53 * a memorandum, dated 17 September 2015, shows Stephen R. H___, PhD, Staff Psychologist, confirmed the applicant was diagnosed with PTSD by eight licensed mental health professionals. He also stated that none of the providers offer an excuse for his past legal issues, but impulsive and risky behavior is all too common with veterans diagnosed with PTSD. * Psychology Group Counseling Note (2 October 2015) – Diagnostic Impression: PTSD, chronic 16. In the processing of this case, an advisory opinion was requested from the Deputy Chief, Personnel Policy Division, NGB, Washington, DC. (The NGB, in turn, requested and obtained an advisory opinion from the Assistant AG, FLARNG, dated 18 March 2016.) The NGB advisory official provided a summary of the case, along with a copy of the FLARNG response and a timeline. a. The NGB and FLARNG advisory officials recommend disapproval of all aspects of the applicant's petition. b. The advisories state, on 17 December 2013, a VA Compensation and Pension (C&P) examiner, who possesses a PhD in Psychology and who determines whether a condition exists and if it is service connected, determined the applicant did not suffer from PTSD or mTBI. Instead, he diagnosed the applicant with personality disorder, alcohol dependency, and paraphilia (not otherwise specified), which he determined were not service connected. c. The advisories indicate the FLARNG should have initiated a formal LODI based on the applicant's attempted suicide. However, the administrative oversight likely would not have resulted in an MEB review or permanent profile for PTSD or mTBI. Despite the lack of an LODI, the combination of the applicant's examinations and treatment from military, civilian, and VA health care providers fulfilled all LODI requirements. In addition, the commander frequently spoke to the applicant's health care provider regarding his treatment plan and pending release from the AGR program, and the provider did not indicate that the applicant needed extensive medical treatment or an MEB. d. The advisories state, "As a result of this final determination by the VA, one may draw a reasonable conclusion that had the FLARNG initiated an LOD investigation the result would have been the same: that [the applicant] would have not been issued a permanent profile level 3 or level 4 and therefore would not have met MEB criteria." e. The advisories also state, "Records show that on 3 June 2013, the Soldier requested and the health care provider approved his release from an intensive outpatient treatment mental health program. As such, at the time of his resignation request and his release from the AGR program on 31 July 2013, the Soldier was not undergoing any extensive medical treatment. Furthermore, as a part of the AGR separation processing, no evidence exists of his undergoing a voluntary physical examination at the time of his separation from the AGR program." f. On 5 July 2013, the applicant resigned his commission in lieu of the Withdrawal of FEDREC Board. At the time, he had been assigned legal counsel from the Trial Defense Services team. Both advisories conclude that the FLARNG correctly processed the applicant's withdrawal of FEDREC. (The timeline shows, on 5 August 2013, the applicant pled "no contest" to two charges against him. The court adjudicated him as guilty and sentenced him.) g. The FLARNG advisory official also offers (based on competent medical authority determinations outlined above [i.e., in paragraphs 12c and 12e]), "…one may conclude that this Soldier would not have been enrolled in the IDES based on a diagnosis of PTSD and mTBI. Therefore, his mental condition would not have impacted the determination of his characterization of service." h. The FLARNG concludes that, based on the VA's final determination of non-service related mental conditions and the applicant's release from a medical treatment facility intensive behavioral treatment program that did not recommend an MEB for his mental diagnosis, the applicant would not have qualified for the MEB process for PTSD or mTBI. i. The NGB LOD Section and the FLARNG concur with the NGB advisory official's recommendation. 17. On 10 May 2016, the applicant was provided a copy of the NGB advisory opinion. 18. On 17 May 2016, he requested an extension of the 30 May 2016 deadline to 10 August 2016 (a period of 90 days from the date of the notification letter) to allow him and his counsel to prepare an official response. He also provided an interim response. a. He stated that he has the utmost legal concerns that laws and regulations have not been followed in his case. He points out the FLARNG IG's investigation found non-compliance with several major legal provisions, violation of the Health Insurance Portability and Accountability Act (HIPAA), omission of abundant actual documentation from the treating physician, and apparent bias and non-professionally motivated actions. b. He restates the regulatory violations that the FLARNG IG found in its investigation of his case. c. He states the FLARNG and NGB advisories make reference to a VA C&P examiner in their responses. He states he did not authorize the release of the VA record and, given HIPAA laws, he questions how they got this information. He adds that he provided medical records from his treating physician who is more competent than a VA C&P examiner. d. He agrees that the combination of his examinations of treatment from military, civilian, and VA health care providers can fulfill all LODI requirements. However, it appears the FLARNG and NGB have not fully reviewed the records because they based their decision entirely on a single VA C&P examiner, but not the applicant's treating psychiatrists, psychologists, or physicians. He states he will outline their evaluations that may be used in lieu of an LODI and will fulfill the requirement of AR 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), paragraph 3-3 (Disposition). He adds the medical records provide evidence of his unfitting medical condition. Accordingly, the FLARNG should also initiate a formal LOD to resolve the issue of no LOD. e. He challenges the advisory official's statement that an unnamed "provider" spoke with an unnamed "commander" regarding the applicant's treatment plan and the "provider" did not indicate that the applicant needed extensive treatment or an MEB. f. He states he will also provide an outline and description of the extensive medical treatment he was undergoing when he was released from the AGR program. He adds his request for extension of his separation date was denied and he did not have medical coverage after he was released from the AGR. g. He concludes by stating his commander/supervisor (Colonel Mike C____) and the chief [not named] were responsible for the FLARNG's failure to follow regulations that resulted in errors in his medical/separation processing. 19. On 1 June 2016, the applicant was advised that the Army Review Boards Agency (ARBA) could not grant him an extension because the Agency operates under a statute that requires all cases be resolved within 18 months from the date of receipt. The applicant was offered the option to either provide any additional documents not later than 3 June 2016 or to withdraw his application and resubmit a new application to the Board. 20. On 2 June 2016, the applicant provided his response. He noted that all the written correspondence by ARBA/ABCMR, NGB, and FLARNG referred only to PTSD, which is far from the truth. a. He emphasized that there was no LOD for either his mTBI that was a result of an IED explosion or his suicide attempt. He also noted that he was diagnosed with mTBI, chronic PTSD, chronic depression, loss of wrist function and constant pain due to laceration of all but a couple of tendons (both wrists), and limited back functionality with extensive pain. He adds that he was unfit for duty, both physically and mentally, at the time of his separation from the AGR. b. He provided the following additional documents: * pictures of his left and right wrists (showing scars from lacerations) * Neuropsychological Assessment Consult, dated 4 February 2015, that shows a history for migraines, panic attacks, chronic low back pain, hyperlipidemia, major depressive disorder, PTSD, attention deficit hyperactivity disorder, and mTBI * three Radiology Reports, dated 15 May 2014, 3 October 2014, and 13 November 2015, that show a primary diagnosis of minor abnormality or abnormality previously identified (multilevel degenerative disc and facet disease) 21. In connection with the processing of this case, the NGB was asked to provide any records related to the applicant's LODIs, physical profiles, IDES processing, and a complete copy of the separation packet. a. On 3 June 2016, an NGB official confirmed that neither the NGB nor State (FLARNG) were able to produce any additional documents pertaining to any of the identified medical actions. b. On 7 June 2016, an NGB official provided 10 documents related to the applicant's separation processing that included: (1) Florida NG, Office of the AG, Saint Augustine, FL, Orders 281-096, dated 8 October 2013; NGB, Washington, DC, Special Orders Number 321 AR, dated 3 December 2013; and ARNG Current Annual Statement of Retirement Points, dated 26 December 2013, that were previously considered and summarized in paragraphs 10, 11, and 12 (above). (2) Resignation in Lieu of Board Proceedings for Withdrawal of FEDREC, dated 5 July 2013, addressed to the Commander, First Army, Rock Island, IL, that shows the applicant acknowledged with his signature that he was informed proceedings had been initiated to withdraw his FEDREC and he voluntarily tendered his resignation as an officer of the FLARNG and as a Reserve officer of the Army under the provisions of (UP) NGR 635-101, section V. It also shows he acknowledged his rights and that he had a reasonable time (at least 30 days from the date of notification) to prepare his case. It further shows he understood that he could be furnished an honorable, general, or other than honorable discharge certificate as determined by the Commander, USAHRC. (3) Election Form, dated 5 July 2013, addressed to the Commander, First Army, Rock Island, IL, that shows the applicant was offered three options: * tender his resignation as an officer of the ARNG and as a Reserve officer of the Army in lieu of proceedings for withdrawal of FEDREC UP NGR 635-101, section V * request a hearing before a board of officers * elect to transfer to the retired service, if eligible (a) It shows a handwritten "X" indicating he elected to transfer to the retired service, if eligible; the option also shows scribble over the handwritten "X," initials, and the handwritten entry "No." (b) It also shows a handwritten "X" indicating he elected to tender his resignation; this option also shows scribble over and around the handwritten "X," initials, and the handwritten entry "Yes." (c) It further shows the applicant placed his signature on the form. (4) Headquarters, First Army, Rock Island, IL, memorandum, dated 9 July 2013, subject: Withdrawal of FEDREC (pertaining to the applicant), that shows the Deputy, Personnel Actions Division, Office of the Deputy Chief of Staff, G-1, forwarded the applicant's resignation to The Adjutant General, State of Florida, Saint Augustine, FL, recommending acceptance and issuance of orders. (5) Headquarters, Florida NG, Office of The Adjutant General, Saint Augustine, FL, memorandum, dated 16 July 2013, subject: Resignation in Lieu of Board Proceedings for Withdrawal of FEDREC – Characterization of Service (pertaining to the applicant), to the Chief, NGB, Arlington, VA, that shows Major General Emmett R. T____, Jr., The Adjutant General, Florida NG, determined the request for separation shall be accepted with a characterization of service of under other than honorable conditions. (6) NGB Form 22 (Report of Separation and Record of Service) that shows the applicant entered service on 31 August 1993 and he was separated as a member of the FLARNG, on 7 October 2013, UP NGR 635-100, paragraph 5a(25), under other than honorable conditions. It also shows he had completed 20 years, 1 month, and 7 days of net service this period; 6 years, 11 months, and 13 days of prior Reserve Component (RC) service; 9 months and 21 days of prior active Federal service; and 27 years, 10 months, and 11 days of total service for pay and total service for retired pay. It further shows, in pertinent part, in – * item 5a (Rank): Major * item 5b (Pay Grade): O-4 * item 9 (Command To Which Transferred): N/A * item 18 (Remarks) – * Soldier Has Completed First Full Term of Service * Soldier Ordered to Active Duty for Operational Support (FTNG-OS) [Operational Support] Under Title 32, USC, section 502(F) * item 20 (Signature of Person Being Separated): "Soldier Not Available for Signature" * item 22 (Signature of Officer Authorized To Sign): no entry (i.e., it is not signed) (7) FLARNG, Office of The Adjutant General, Saint Augustine, FL, memorandum, dated 26 December 2013, that forwarded the NGB Form 22 to the applicant. REFERENCES: 1. AR 40-501 provides standards for induction, enlistment, appointment, retention, and related policies and procedures. a. Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for Soldiers. Paragraph 3-3 shows that Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in AR 635-40 with the following caveats: (1) U.S. Army Reserve or ARNG/ARNGUS Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 (Army Reserve Medical Examinations) and chapter 10 (ARNG) of this regulation. (2) Soldiers pending separation in accordance with the provisions of AR 600-8-24 authorizing separation under other than honorable conditions who do not meet medical retention standards will be referred to an MEB. In the case of commissioned or warrant officers, the physical disability processing and the administrative separation processing will be conducted in accordance with the provisions of AR 600-8-24 and AR 635-40. (3) Physicians who identify Soldiers with medical conditions listed in this chapter should initiate an MEB at the time of identification. Physicians should not defer initiating the MEB until the Soldier is being processed for non-disability retirement. b. Chapter 7 (Physical Profiling), paragraph 7-4 (Temporary versus permanent profiles), shows that Soldiers receiving medical or surgical care or recovering from illness, injury, or surgery, will be managed with temporary physical profiles until they reach the point in their evaluation, recovery, or rehabilitation where the profiling officer determines that Medical Retention Determination Point (MRDP) has been achieved, but no longer than 12 months. A temporary profile is given if the condition is considered temporary, the correction or treatment of the condition is medically advisable, and correction usually will result in a higher physical capacity. Soldiers on active duty and RC Soldiers not on active duty with a temporary profile will be medically evaluated at least once every 3 months at which time the profile may be extended for a maximum of 6 months from the initial profile start date by the profiling officer. Temporary profiles exceeding 6 months duration, for the same medical condition, will be referred to a specialist (for that medical condition) for management and consideration for one of the following actions: * continuation of a temporary profile for a maximum of 12 months from the initial profile start date * change the temporary profile to a permanent profile * determination of whether the Soldier meets the medical retention standards of chapter 3 and, if not, referral to an MEB 2. AR 600-8-4 prescribes the policies and procedures for investigating the circumstances of the disease, injury, or death of a Soldier and provides standards and considerations used in determining LOD status. It also provides the reasons for conducting LODIs, which include extension of enlistment, longevity and retirement multiplier, forfeiture of pay, disability retirement and severance pay, medical and dental care for Soldiers on duty other than active duty for a period of more than 30 days, and benefits administered by the VA. a. Chapter 2 (LOD Determinations) provides in: (1) paragraph 2-6 (Standards applicable to LOD determinations), decisions on LOD determinations will be made in accordance with the standards set forth in this regulation; (2) paragraph 2-3 (Requirements for LODI), subparagraph c, investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated, or formally where an investigating officer is appointed to conduct an investigation into suspected misconduct or negligence. A formal LODI must be conducted in circumstances involving self-inflicted injuries or possible suicide. b. Chapter 4 (Special Considerations and Other Matters Affecting LODIs), paragraph 4-11 (Mental responsibility, emotional disorders, suicide, and suicide attempts) shows: (1) The Medical Treatment Facility must identify, evaluate, and document mental and emotional disorders. A Soldier may not be held responsible for his or her acts and their foreseeable consequences if, as the result of mental defect, disease, or derangement, the Soldier was unable to comprehend the nature of such acts or to control his or her actions. Therefore, these disorders are considered "in LOD" unless they existed before entering the Service and were not aggravated by military service. Personality disorders by their nature are considered as Existed Prior To Service (EPTS). (2) LODIs of suicide or attempted suicide must determine whether the Soldier was mentally sound at the time of the incident. The question of sanity can only be resolved by inquiring into and obtaining evidence of the Soldier's social background, actions, and moods immediately prior to the suicide or suicide attempt, troubles that might have motivated the incident, and examinations or counseling by specially experienced or trained persons. Personal notes or diaries of a deceased Soldier are valuable evidence. In all cases of suicide or suicide attempts, a mental health officer will review the evidence collected to determine the bio-psychosocial factors that contributed to the Soldier's desire to end his or her life. The mental health officer will render an opinion as to the probable causes of the self-destructive behavior and whether the Soldier was mentally sound at the time of the incident. (3) If the Soldier is found mentally unsound, the mental health officer should determine whether the Soldier's mental condition was an EPTS condition aggravated by Service or was due to the Soldier's own misconduct. Those conditions occurring during the first six months of active duty may be considered as EPTS, depending on history. (4) In cases of suicide or attempted suicide during absence without leave, mental soundness at the inception of the absence must also be determined. (5) An injury or disease intentionally self-inflicted or an ill effect that results from the attempt (including attempts by taking poison or drugs) when mental soundness existed at the time should be considered misconduct. 3. AR 600-8-24 prescribes the policies and procedures governing the transfer and discharge of Army officer personnel. a. Chapter 2 (Release from Active Duty of RC Commissioned and Warrant Officers) shows in: (1) paragraph 2-7 (Rules for processing voluntary release from active duty due to expiration of active duty commitment) that an officer not under the jurisdiction of a commander having separation approval authority will be reported to Commander, USAHRC, Fort Knox, KY, not later than 60 calendar days prior to scheduled date of release from active duty. (2) paragraph 2-29 (Rules for processing involuntary release from active duty due to civilian criminal conviction), UP Title 10, U.S. Code, section 12312, as implemented by Department of Defense Instruction 1332.40 (Separation Procedures for Regular and Reserve Commissioned Officer), a RC officer on active duty who is convicted and sentenced to confinement in a Federal or State penitentiary or other correctional institution for a period of more than one year or for a crime of moral turpitude (including, but not limited to, child abuse, incest, indecent exposure, soliciting prostitution, embezzlement, check fraud, and any felony or other offense against the mores of society), and whose sentence has become final, may be released from active duty by the Secretary of the Army (SA) or their designee. b. Chapter 4 (Eliminations) shows in: (1) paragraph 4-5 (Separation date), an officer approved for involuntary separation by the SA or his designee or whose request for resignation or discharge in lieu of elimination is approved will be separated accordingly. (2) paragraph 4-24 (Rules for processing an option that an officer elects while elimination action is pending): (a) an officer identified for elimination may, at any time during or prior to the final action in the elimination case, elect one of the following options (as appropriate): * submit a resignation in lieu of elimination * request discharge in lieu of elimination * apply for retirement in lieu of elimination, if otherwise eligible (b) When an officer submits a resignation in lieu of elimination or a request for discharge in lieu of elimination, the officer waives the right to a hearing before a Board of Inquiry, and the case will be processed without convening a Board of Inquiry. Commanders will ensure that an officer has had an opportunity to consult with counsel before waiving the right to a hearing before a Board of Inquiry. Upon final determination, the Commander, USAHRC, will forward appropriate separation instructions to the appropriate Personnel Service Center/Military Personnel Division. 4. NGR 600-5, chapter 6 (Release from the FTNGD Title 32 AGR Program), Chapter 6 (Separation), provides in: a. paragraph 6-1 (General), AGR Soldiers within 2 years of becoming eligible for retired or retainer pay will not be involuntarily released from FTNGD unless release is approved by the SA; b. paragraph 6-2 (Medical separation), AGR Soldiers undergoing extensive medical treatment or MEB proceedings for LOD related injuries or diseases will be retained in AGR status until final disposition by medical authorities. AR 635-40 will be used to separate AGR Soldiers as a result of physical disabilities; and c. paragraph 6-4 (Mandatory separation), AGR Soldiers will be separated without Board action regardless of the expiration dates of their current periods of duty. Retention is not authorized. Separation for cause procedures need not be used. Soldiers will be given at least 30 days' notice of separation. It also shows separation is required when, in pertinent part, conviction by civilian or military authorities for a disqualifying offense UP NGR 635-100, NGR 600-100, NGR 600-101, and NGR 600-200. AGR Soldiers will not be separated UP this paragraph until final approval by The Adjutant General. 5. AR 635-40 sets forth policies, responsibilities, and procedures 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. 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. Separation by reason of disability requires processing through the IDES. a. Chapter 2 (Responsibilities and Functions), shows the Commanding General (CG), U.S. Army Physical Disability Agency (USAPDA), under the operational control of the CG, USAHRC, will operate the Army IDES. b. Chapter 3 (Policies) provides in: (1) paragraph 3-1 (Standards of unfitness because of physical disability), 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 Soldier reasonably may be expected to perform because of his or her office, rank, grade or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty; (2) paragraph 3-2 (Presumptions), subparagraph b (Processing for separation or retirement from active service): (a) 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. (b) 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: * 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. 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. (3) paragraph 3-5 (Use of the Veterans Affairs Schedule for Rating Disabilities (VASRD)), that 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. Any non-ratable defects or conditions will be listed on the DA Form 199 (PEB Proceedings), but will be annotated as non-ratable. c. Chapter 4 (Procedures) provides in: (1) paragraph 4-4 (Commissioned or warrant officers who may be separated under other than honorable conditions): (a) A commissioned or warrant officer will not be referred for disability processing instead of elimination action (administrative separation) that could result in separation under other than honorable conditions. Officers in this category who are believed to be unfit because of physical disability will be processed simultaneously for administrative separation and physical disability evaluation. (b) Commanders exercising general court-martial authority will ensure that the foregoing actions processed together are properly identified and cross-referenced. The administrative separation will be forwarded to the Commander, USAHRC, Attention: AHRC-OPL-R, 1600 Spearhead Division Avenue, Fort Knox, KY 40122-5208. (c) The Commander, USAHRC, will refer the entire file, including both courses of action, to the Office of the SA, Attention: SAMR-RB, Washington, DC 20310-3073, for necessary review. The SA will decide the proper disposition of the case. (2) paragraph 4-10 (The MEB), 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 AR 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. (3) paragraph 4-12 (Informal Board), each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the IDES. 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 (PEBLO) of the medical treatment facility having control of the Soldier will be the counselor for the Soldier. As such, the PEBLO 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. 6. NGR 635-100, paragraph 5 (Criteria), subparagraph a(25), termination of State appointment, provides that unless contrary to State law and regulations, the appointment of an ARNG officer should be terminated in accordance with State laws or regulations. 7. NGR 635-101 prescribes the criteria and procedures for determining the capacity for further service of commissioned and warrant officers for continued FEDREC in the ARNG. Section V (Resignation In Lieu Of Withdrawal of FEDREC) provides that when an officer has been notified that he is being considered for withdrawal of FEDREC, he may submit a resignation at any time prior to final action on the board proceedings. Commanders will insure that there is no element of coercion in connection with a resignation, in lieu of withdrawal of FEDREC, and that the officer concerned is allowed at least 10 days after notification of impending elimination to make a decision in cases wherein resignation is contemplated. Resignations will be submitted through channels to the State AG for action. A copy of the resignation will be appended to the separation orders issued by the State AG and forwarded to the Chief, NGB. 8. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay. 9. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the SA, acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it and begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice. The ABCMR will decide cases on the evidence of record; the ABCMR is not an investigative body. 10. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, states applicants do not have a right to a formal hearing before the ABCMR. The Director, ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. Although the applicant has indicated he is willing to appear in person or by telephone before the Board, there is sufficient evidence available for a fair and impartial consideration of his case without such an appearance. 2. The applicant requests that the administrative separation process that resulted in his discharge under other than honorable conditions be voided; reinstatement as a member of the AGR program and extension of FEDREC with all active duty back pay and allowances; processing through the IDES; and honorable retirement from the ARNG either administratively or based on permanent disability due to his unfitting medical conditions of PTSD and mTBI. 3. The applicant contends that, on 26 August 2003 while serving in Iraq, his vehicle suffered a hit from an IED that knocked him unconscious for a short time and that his mental capacity has never been the same since the incident. He acknowledges that he never reported his injuries. 4. The applicant attempted suicide on 8 April 2013. 5. The evidence of record shows a physician at the Emerald Coast Behavioral Hospital, Outpatient Service, Panama City, FL, diagnosed the applicant with PTSD based on his combat time in Iraq and related symptoms. The diagnosis was made during the period 30 April through 5 June 2013. 6. The applicant was separated from active service in an AGR status on 31 July 2013. (His discharge under other than honorable conditions and withdrawal of FEDREC was effective 7 October 2013.) 7. There is no evidence of record of a LODI pertaining to an IED incident on 26 August 2003 or an incident involving a self-inflicted injury occurring on 8 April 2013. There is also no evidence of any physical profiles; referral to an MEB pertaining to PTSD, mTBI, or any BHI; or a complete administrative separation packet. 8. Given the ARNG's inability to produce any records pertaining to the applicant related to a formal LOD, physical profile, and/or referral to an MEB, along with the acknowledgement in the advisory opinions that the actions were not completed, this Board cannot consider this case based on the presumption of administrative regularity. 9. The evidence of record shows: a. Civilian medical records confirm the applicant was diagnosed with PTSD based on his combat time in Iraq. This diagnosis was prior to his separation from active duty on 31 July 2013. b. VA medical records show a Primary Care Provider Clinic Note, dated 4 September 2013, which confirms the applicant had a past medical history of, in pertinent part, PTSD and TBI. Additionally, a Psychosocial Residential Rehabilitation Treatment Program, Recreation Therapy Note, dated 7 October 2013, confirms a diagnosis of PTSD. These diagnoses were prior to the applicant's discharge on 7 October 2013. c. It is noted that the NGB/FLARNG advisory opinions rely on a VA C&P examiner's assessment (i.e., that the applicant did not suffer from PTSD or mTBI) that was made/recorded more than 2 months after the applicant was discharged. 10. In view of the foregoing, the conclusions by the advisory officials that (in the absence of a formal LODI) had the FLARNG initiated an LODI the applicant would have not been issued a permanent profile level 3 or level 4 and, therefore, would not have met MEB criteria is purely speculative and is not supported by the evidence of record. In addition, based on the foregoing and in the absence of a decision by a medical official authorized to render such a decision, the advisory officials' additional conclusions – that the applicant's medical condition(s) did not require processing through the IDES and therefore his release from the AGR, withdrawal of FEDREC, and administrative separation were all valid personnel actions – are also not supported by the evidence of record. 11. The ABCMR specifically requested (on at least two occasions) a complete copy of the applicant's separation action from the NGB. A total of 10 (different) documents were provided. a. On 30 May 2013, the Florida NG, Deputy Chief of Staff, Personnel, issued orders changing the applicant's AGR active duty commitment from 5 years and 6 months to 2 years, 7 months, and 8 days with his active duty commitment ending on 31 July 2013 (vice 23 June 2016). The applicant received a diagnosis of PTSD prior to issuance of the orders amending his active duty separation date. However, there is no evidence of record that shows the applicant was referred to the IDES and processed simultaneously for administrative separation and physical disability evaluation. b. The applicant's Resignation in Lieu of Board Proceedings for Withdrawal of FEDREC, dated 5 July 2013, shows the Commander, USAHRC, would determine the characterization of the applicant's service. The applicant was serving on active duty in the AGR (Title 32) at the time and the governing Army regulation shows the Commander, USAHRC, as the designated separation authority on behalf of the SA. c. The evidence of record shows the applicant had completed the required years of qualifying service for retired pay. (1) The Election Form, dated 5 July 2013, that the applicant completed appears to support his contention that he was informed either he was not eligible for retired pay or that the FLARNG AG would not support his retirement. (2) On 9 July 2013, the Adjutant General, Florida NG, determined the request for separation shall be accepted with a characterization of service of under other than honorable conditions. It is noted that the memorandum signed by the FLARNG AG accepted the applicant's voluntary resignation in lieu of elimination and forwarded it to the Chief, NGB. (a) There is no evidence of record that shows the applicant's voluntary resignation in lieu of elimination, submitted while he was serving on active duty in an AGR (Title 32) status was acted upon by the Chief, NGB, or the Commander, USAHRC. (b) There is also no evidence of record that the appropriate separation authority approved the applicant's resignation and separation from active duty and as a member of the AGR (Title 32) prior to 31 July 2013. In this regard, the applicant should have been retained on active duty as a member of the AGR program (Title 32) pending a decision by the appropriate separation authority. (3) The NGB Form 22 appears to have been prepared for the purpose of discharging the applicant from the FLARNG, effective 7 October 2013; however, it is not authenticated by an authorized official. (The NGB/FLARNG offered no explanation despite providing a copy of the NGB Form 22 to the ABCMR on 7 June 2016.) 12. In view of all of the foregoing, and in the interest of justice, it would be appropriate in this case to correct the applicant's records as outlined in the Board Determination/Recommendation section of this Record of Proceedings. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150000176 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2