IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150003042 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x___ ___x ____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150003042 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150003042 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 records to show he was retired due to combat-related disability instead of discharged with severance pay, non-combat related (enhanced). 2. The applicant states: a.  He did not fully understand the repercussions of being separated with severance pay instead of pressing to have his post-traumatic stress disorder (PTSD) evaluated at the Fort Carson Warrior Transition Unit (WTU). b.  He was diagnosed with PTSD prior to and while he was assigned to the WTU. His condition was reported to the WTU but was never evaluated for consideration for a Military Occupational Specialty/Medical Retention Board or physical evaluation board (PEB), which he feels would have raised his disability rating to a retirement range instead of severance pay. c.  Title 10, U.S. Code, section 1212, states disability must be incurred in a combat zone or in combat-related operations. He was deployed to Bahrain and sent back early from his deployment for disabilities. d.  He received hazardous duty pay and tax exemption (combat zone tax exclusion) while deployed, as well as earning a shoulder sleeve insignia-former wartime service for his deployment. He believes Bahrain was classified as combat duty under the conditions at the time. 3. The applicant provides: * Department of Veterans Affairs (VA) rating extract * VA Progress Notes * Wyoming Adjutant General Orders 038-121, dated 7 February 2013 * Camp Shelby Joint Forces Training Center Orders CS-135-0038, dated 15 May 2013 * Consultation Report, dated 13 December 2013 * Headquarters, 3d Battalion, 43d Air Defense Artillery, memorandum for record, dated, 30 December 2013, subject: Authorization to Wear the 11th Air Defense Artillery "Imperial" Brigade Shoulder Sleeve Insignia-Former Wartime Service * Standard Form 600 (Chronological Record of Medical Care), dated 14 October 2014 * DA Form 199 (Informal PEB Proceedings) * Installation Management Command, Headquarters, U.S. Army Garrison, Fort Carson, Orders 287-0011, dated 14 October 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty) CONSIDERATION OF EVIDENCE: 1. Having prior honorable service in Regular Army and U.S. Army Reserve, the applicant enlisted in the Army National Guard on 13 September 2006. 2. On 15 May 2007, he was assigned a temporary physical profile for right medial meniscus (knee injury). 3. Wyoming Adjutant General Orders 050-100, dated 19 February 2009, show he was mobilized effective 16 February 2009 and assigned to Headquarters and Headquarters Company, 960th Brigade Support Battalion, Casper, WY. 4. On 17 April 2010, he was released from active duty not by reason of physical disability for demobilization of forces from a contingency operation. 5. His DA Form 3349 (Physical Profile), dated 13 April 2011, shows he was assigned a temporary physical profile for torn right biceps tendon which occurred in Kuwait in 2008 and was repaired surgically in April 2011. 6. On 5 May 2011, he was assigned a temporary physical profile for chronic stable right knee arthritis and injury. 7. On 6 October 2011, he was assigned a temporary physical profile which: * listed his medical conditions as – * bipolar disorder * right knee pain with narcotic pain medication use * PTSD * hearing loss * listed his different levels of functional capacity in six factors (PULHES) as – * P – physical capacity or stamina – 1 * U – upper extremities – 1 * L – lower extremities – 3 * H – hearing and ears – 2 * E – eyes – 1 * S – psychiatric – 3 * listed his operative PULHES ratings at the time as 112111 8. He provided his VA Psychiatry Compensation and Pension Examination consultation notes, dated 4 April 2012, subject: Review PTSD Disability Benefits Questionnaire. a. His current diagnoses were shown as: (1) Diagnosis 1: Axis 1 – PTSD. (2) Diagnosis 2: Axis 1 – alcohol abuse. (3) Additional Diagnosis: Axis IV – Psychosocial and Environmental Problems noted health problems associated with chronic pain, marital conflict, and social isolation. (4) Additional Diagnosis: Axis V – Current Global Assessment of Functioning Score of "55" and noted symptoms of PTSD and alcohol abuse cause some occupational impairment and significant social impairment. b. His level of occupational and social impairment with regard to all his mental diagnoses was best summarized as "occupational and social impairment with reduced liability and productivity." 9. On 9 April 2013, he was ordered to active duty as a member of his unit for mobilization in support of Operation Enduring Freedom for a period not to exceed 400 days. 10. Camp Shelby Joint Forces Training Center Orders CS-135-0038, dated 15 May 2013, directed his deployment in a temporary change of station status in support of Operation Enduring Freedom, Bahrain, on or about 16 May 2013 for a period of 363 days. 11. His DA Form 2173 (Statement of Medical Examination and Duty Status), dated 28 October 2013, shows his condition/injury of left elbow medial epicondylitis (commonly known as tennis elbow) was considered to have been incurred in the line of duty. 12. His DA Form 2173, dated 21 November 2013, shows his condition/injury of left leg and bilateral knee arthropathy (not otherwise specified) was considered to have been incurred in the line of duty. 13. He provided a Consultation Report, dated 13 December 2013, that lists psychological symptoms of PTSD and depression. 14. His medical evaluation board (MEB) proceedings are not in his available records for review. 15. His DA Form 199, dated 11 September 2014, shows: a. the PEB found him physically unfit for: * MEB Diagnosis 1 – right rotator cuff tendinitis * MEB Diagnosis 2 – right knee degenerative joint disease b. both conditions were determined to be non-combat-related and occurred in non-combat zones. The PEB recommended his separation with severance pay and a disability rating of 20 percent. c.  MEB Diagnosis 2 – left knee degenerative joint disease – was determined not to be unfitting. d.  His following conditions were determined to meet retention standards: * left acromioclavicular joint arthritis * cervical degenerated disc * lumbar degenerative disc disease * left elbow sprain/strain * left ear sensorineural hearing loss, normal hearing right ear * bruxism * bilateral subjective tinnitus 16. On 22 September 2014, he concurred with the findings and recommendations of the PEB, waived his right to a formal hearing, and elected not to request reconsideration of his VA ratings. 17. On 9 October 2014, the PEB findings and recommendations were approved. 18. His Standard Form 600, dated 14 October 2014, shows had a diagnosis of PTSD and an MEB was recommended for his bilateral shoulder pathology to include impingement and acromioclavicular joint arthrosis. 19. On 13 November 2014, he was honorably discharged. His DD Form 214 shows his narrative reason for separation as disability, severance pay, non-combat (enhanced). 20. On 17 June 2016, the Chief, Behavioral Health Division, Office of the Surgeon General (OTSG), provided an advisory opinion in which he stated: a.  In March 2012, the VA increased the applicant's assigned percentage for PTSD with alcohol abuse to 70 percent. A VA Compensation and Pension Examination, dated 4 April 2012, indicated he met criteria for PTSD and alcohol abuse accompanied by "occupational and social impairment with reduced reliability and productivity." b.  The applicant was evacuated from theater in November 2013 for neck and knee pain. c.  During his WTU intake risk assessment on 3 December 2013, he endorsed only one item and was deemed to be a low risk for danger to himself and others. During social work intake on 27 December 2013, he reported a history of PTSD and bipolar disorder type II diagnosed at the VA Medical Center in Casper, WY, in 2008, although no confirming documentation was included. At this time, he scored 17 on the PTSD Checklist-Military Version, indicating no PTSD symptoms, which the provider indicated was consistent with her diagnostic impression. d.  The first impression of a PTSD diagnosis was in a 27 January 2014 WTU risk assessment with no clarification of stressor or symptoms. Instead, the provider noted: "SM [service member] reported no new/other BH [behavioral health] issues or concern(s)." The final behavioral health entry on 7 November 2014 includes Axis I diagnoses of chronic PTSD, depressed mood, and bipolar disorder, all of which were noted to be "prior diagnoses." e.  The Behavioral Health Integrated Disability Evaluation System screening conducted on 12 February 2014 indicated a need for further diagnostic clarification and, again, an Axis I diagnosis was deferred. His MEB Narrative Summary, dated 19 March 2014, included no behavioral health conditions. A WTU case management note stated the applicant received his Narrative Summary on 3 April 2014 and agreed with the findings. f.  His clinical assessments performed on 3 December 2013, 12 February 2014, and 19 March 2014 do not indicate that he had active symptoms of PTSD. He was diagnosed with PTSD by the VA as recently as March 2012. It is likely that PTSD should have been listed on his Narrative Summary in 2014. However, there is no indication in the medical record that the condition fell below medical retention standards, required duty limitations, or impaired social or occupational functioning. 21. On 15 June 2016, a copy of the advisory provided by the Chief, Behavioral Health Division, OTSG, was sent to the applicant for review and for an opportunity to provide a response. He did not respond by the suspense date. REFERENCES: 1. Title 10, U.S. Code, chapter 61, provides for the disability retirement or separation of a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. 2. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 3. Title 10, U.S. Code, section 1212, states upon separation from the Armed Forces under section 1203 or 1206 of this title, a member is entitled to disability severance pay computed by multiplying the member's years of service computed under section 1208 of this title (subject to the minimum and maximum years of service provided for in subsection (c)), by the highest of the following amounts, listed in subsections (a) through (d). Subsection (A) pertains to twice the amount of monthly basic pay to which he would be entitled if serving on active duty on the date when he is separated and in the grade and rank in which the member was serving on the date when his or her name was placed on the Temporary Disability Retired List, or on the date when the member is separated if his or her name was not carried on that list. 4. Title 10, U.S. Code, section 1212, subsection (c) states the minimum years of service of a member for the purposes of subsection (a)(1) shall be 6 years in the case of a member separated from Armed Forces for a disability incurred in the line of duty in a combat zone (as designated by the Secretary of Defense for purposes of this subsection) or incurred during the performance of duty in a combat-related operations as designated by the Secretary of Defense and 3 years in the case of any other member. The maximum years of service of a member for the purposes of subsection (a)(1) shall be 19 years. 5. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). a.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides the standards for medical fitness for retention and separation, including retirement. Soldiers with medical conditions listed in this chapter are referred for disability processing. b.  Chapter 7 (Physical Profiling) provides a system for classifying individuals according to functional abilities and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted. (1)  Four numerical designations (1-4) are used to reflect different levels of functional capacity under six factors. (2)  Numerical designator 3 indicates an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual receives assignments commensurate with his or her functional capacity and the defect or impairment requires significant restriction of use. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System 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. a.  The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. b.  The medical treatment facility commander with primary care responsibility evaluates those referred to him or her and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to an MEB. Those members who do not meet medical retention standards are referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. 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. c.  Disability compensation is not an entitlement acquired by reason of a 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. d.  Recommendations of the informal PEB are recorded on a DA Form 199 (PEB Proceedings). Section IX (Soldier's Election) of the DA Form 199 lists the election options available to the Soldier for informal determinations. These include: * concurrence with the findings and recommendations and waiver of a formal hearing * nonconcurrence with the findings and recommendations, submission of a rebuttal explaining the Soldier's reasons for nonconcurrence, and waiver of a formal hearing * demand for a formal hearing with or without personal appearance * choice of counsel if a hearing is demanded * decline reconsideration of the VA rating e.  Soldiers indicate their elections by placing a checkmark in section IX and by signing and dating the original and the medical treatment facility copies. DISCUSSION: 1. The applicant contends his PTSD should have been included in his PEB evaluation and this condition would have received a disability rating which would have raised his overall rating within the range for medical retirement. 2. Although the evidence of record shows he was diagnosed with PTSD and the Chief, Behavioral Health Division, OTSG, states this diagnosis should have been listed on his DA Form 199, his records are void of and he failed to provide evidence showing his PTSD condition fell below medical retention standards, required duty limitations, or impaired his social or occupational functioning. 3. A PEB considered only his unfitting conditions and recommended his separation with severance pay and assigned a 20-percent disability rating for his unfitting conditions of right rotator cuff tendinitis and right knee degenerative joint disease. Both conditions were determined to be non-combat-related and occurred in non-combat zones. 4. The evidence of record shows he concurred with the findings and recommendation of the PEB which were approved. 5. Since he had less than 20 years of active service and his medical condition was rated less than 30-percent disabling, he was discharged by reason of disability with severance pay. 6. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003042 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003042 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2