BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150003614 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 BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150003614 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by 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. a. 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. b. Should a determination be made that the applicant should have been separated under 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 to correcting his records to show he was medically retired without benefit of processing through 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. BOARD DATE: 9 August 2016 DOCKET NUMBER: AR20150003614 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 a medical retirement and an upgrade of his under honorable conditions (general) discharge to an honorable discharge. 2. The applicant states that over a 3-year period the Army willfully violated Army Regulation (AR) 40-501 (Standards of Medical Fitness) and AR 635-200 (Active Duty Enlisted Administrative Separations) and decided to administratively separate him from active duty. The decision was adjudicated and the ABCMR determined his under other than honorable conditions (UOTHC) discharge should be upgraded, due in large part to the military ignoring regulations by not providing a Medical Evaluation Board (MEB) on several occasions. 3. The applicant provides: * medical documents related to his post-traumatic stress disorder (PTSD) * Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) Proceedings with allied documents * memorandum, subject: Investigation into the Alleged Misconduct of [Applicant], Warrior Transition Battalion (WTU), Fort Bragg, NC, from June 2008 to April 2010 * Administrative Separation Board Proceedings with allied documents * Request to Reinstate MEB addressed to the Army Chief of Staff * DD Form 214 (Certificate of Release or Discharge from Active Duty), issued 11 March 2015 COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant’s counsel makes no request or statement. 2. Counsel provides court documents in response to the medical advisory opinion which include: * Complaint in [applicant] v. United States 11-XXXX * Judgment of Court of Federal Claims * Motion for Legal Fees CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Having prior service in the Army National Guard, the applicant enlisted in the Regular Army on 1 December 1997 and he served in MOS 11B (Infantryman) completing deployments to Kosovo, Afghanistan, and Iraq. 3. On 6 February 2009, the applicant underwent a command-directed mental health evaluation (CDMHE), which diagnosed him with PTSD but found no evidence his condition would warrant disposition through medical channels and determined no restrictions were necessary. 4. On 16 March 2010, the applicant was evaluated in a 60-minute session by a psychiatrist, who assessed the applicant as having PTSD and depression, which did not meet retention standards. The psychiatrist noted the applicant had been previously diagnosed with PTSD in 2008. 5. His discharge packet contains a memorandum, dated 22 December 2010, from his defense counsel listing numerous defects with the administrative board process and requesting disability processing as the applicant did not meet the medical fitness standards for retention. 6. On 4 February 2011, an administrative law attorney responded to defense counsel’s request for medical processing as follows: No evidence contained in this record shows that any medical treatment facility [MTF] commander or attending medical officer has determined that [the applicant] does not meet the medical fitness standards for retention, nor is there evidence that [the applicant] has begun the [MEB] process. If such evidence is presented to the Separation Authority, AR 635-200, paragraph 1-33 dictates that final separation action should not be taken pending the results of the MEB. 7. The applicant was discharged on 25 February 2011 by reason of misconduct–commission of a serious offense in the rank/grade of private (PVT)/E-1 under the provisions of paragraph 14-12c of AR 635-200 with a character of service of UOTHC. His DD Form 214 shows he completed 13 years, 2 months, and 25 days of creditable active service this period. 8. The available records are void of MEB proceedings. 9. On 18 October 2012, in response to a court remand, the ABCMR considered the applicant’s request to have his UOTHC discharge voided, be reinstated to pay grade of E-6, and to have his discharge upgraded to honorable or be reinstated to active duty in pay grade E-6 with processing under the Physical Disability Evaluation System (PDES) (ABCMR Docket Number AR20120004257). a. The Board determined that the totality of the evidence, including the medical record most proximate to the applicant’s discharge, overwhelmingly supported the conclusion that the applicant, upon separation, met medical retention standards and did not have a condition warranting an MEB or entry into the PDES. b. The Record of Proceedings noted there was no evidence that an MTF commander determined the applicant had a medical condition that did not meet medical fitness standards for retention. 10. On 22 January 2015, in response to a court remand, the ABCMR considered the applicant's request to upgrade his UOTHC discharge to an honorable discharge (ABCMR Docket Number AR20140018364). The basis for the applicant's request was the Secretary of Defense’s policy guidance, issued on 3 September 2014, requiring evaluation of the impact of PTSD on a serviceman’s behavior which rendered him eligible for discharge under less than honorable conditions. a. The Board concluded that PTSD conditions most likely contributed to the misconduct that led to the discharge. After carefully weighing that fact against the severity of the applicant's misconduct, the Board determined there was sufficient mitigating evidence to warrant upgrading the characterization of his service to a general discharge under honorable conditions and restoring his rank/grade to SGT/E-5 with a date of rank and effective date of 7 January 2010 (the date he was reduced from SSG/E-6 as a result of NJP under the provisions of Article 15). b. The Board's recommendation was approved, and on 11 March 2015 the applicant was issued a new DD Form 214 reflecting his discharge upgrade. 12. In conjunction with the processing of this case, the Board received an advisory opinion from the Office of The Surgeon General (OTSG), dated 17 June 2016. After reviewing the documents provided by this Board and records available in the Department of Defense electronic medical record (AHLTA) the Chief, Behavioral Health Division, stated: a. The applicant was diagnosed with PTSD in January 2008 and was assigned to the WTU at Fort Bragg, NC in June with a diagnosis of PTSD. In February 2009, a CDBHE concluded with a diagnosis of PTSD but determined it was not disabling and cleared the applicant for duty and administrative action. In July, he attended the PTSD Program at Walter Reed Army Medical Center and in September he was cleared by his psychologist for return to duty with recommended reclassification to a non-combat MOS. An MOS/MMRB conducted on 28 December 2009 recommended a MEB, stating “The Soldier’s case will be forwarded to a PEB regardless of the MEB findings and recommendations, so long as the Soldier retains a P3 profile.” b. A Narrative Summary, dated 16 March 2010, concluded with diagnoses of major depressive disorder (MDD) and PTSD. While acknowledging that these conditions are medically disqualifying in accordance with Army Regulation 40-501 and giving the applicant a S3 profile, the provider observed that he was “presently relatively stable” and recommended he continue treatment and be reassessed at a later time. c. On 8 April 2010, a CDBHE conducted in connection with a possible administrative separation found him mentally responsible and to have sufficient mental capacity to understand and participate in any administrative proceedings. The provider added: “However, this [service member] has a psychiatric condition that is of sufficient severity to warrant disposition through military medical channels. His MEB of 16 March 2010 determined that he does not meet retention standards IAW AR 40-501. [The applicant] is not psychiatrically cleared for administrative action; however, final determination regarding separation remains the responsibility the separation authority.” d. A December 2010, a memorandum from an Army Judge Advocate General's Corps defense counsel delineated defects in the administrative separation proceedings and requested the applicant’s separation be processed through medical channels. The Army’s response to this memorandum upheld the integrity of the proceedings. On 30 January 2011, the WTU nurse case manager was directed to stop the MEB process and “[service member] stated understanding.” e. Records indicate the applicant received treatment for PTSD and MDD for a month in 2012 at the Advance Behavioral Center, in North Carolina. No documentation from the Veterans Health Care Administration was available for review. f. During the applicant’s time in service he was diagnosed with PTSD on three different occasions: at admission to an inpatient PTSD/traumatic brain injury (TBI) program in July 2009; in an MEB on 16 March 2010; and by a CDBHE in April 2010. The preponderance of evidence indicates that he met criteria for PTSD and that his condition did not meet medical retention standards at the time of his separation, as noted on his 8 April 2010 evaluation. 13. A copy of the 17 June 2016 advisory opinion was provided to the applicant and his counsel in order to have the opportunity to respond to or rebut its contents. On 29 June 2016, his counsel provided the applicant’s Federal complaint, Judgment of Court of Federal Claims, and Motion for Legal fees. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The regulation discusses reasons for separation including expiration of service obligation, convenience of the government, retirement and numerous other reasons. Chapter 14 establishes policy and procedures for separating personnel for misconduct. Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. It further states in: a. Section VI (Medical Processing), paragraph 1-33a, states that, except for separation action under chapter 10 and as is provided in paragraph 1-33b, disposition through medical channels takes precedence over administrative separation processing. b. Paragraph 1-33b provides that when the MTF commander or attending medical officer determines that a Soldier being processed for administrative separation under chapter 7 or 14 does not meet the medical fitness standards for retention (Army Regulation 40-501, chapter 3), he or she will refer the Soldier to an MEB in accordance with Army Regulation 40-400. The administrative separation proceedings will continue, but final action by the separation authority will not be taken pending the results of the MEB. If the MEB findings indicate that referral to a PEB is warranted for disability processing under Army Regulation 635-40, the MTF commander will furnish copies of the approved MEB proceedings to the Soldier’s general court-martial convening authority (GCMCA) and unit commander. The GCMCA may direct, in writing, that the Soldier be processed through the PDES when action under the Uniform Code of Military Justice (UCMJ) has not been initiated and one of the following has been determined: * Soldier’s medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative separation * Other circumstances of the individual case warrant disability processing instead of further processing for administrative processing c. The authority of the GCMCA to determine whether a case is to be processed through medical disability channels or under administrative provisions will not be delegated. d. Paragraph 14-16 states intermediate commanders may in cases of misconduct, except for cases of abuse of illegal drugs, direct disposition through medical channels if the Soldier has an incapacitating physical or mental illness that was the direct or substantial contributing cause of the conduct for which action prescribed in this regulation is being considered and action under the UCMJ will not be initiated. e. Paragraph 14-17 states upon receiving a recommendation for separation for misconduct, the separation authority may direct that the case be processed through medical channels, if appropriate. Such disposition is required if the soldier has an incapacitating physical or mental illness that was the direct or substantial contributing cause of the conduct, and action under the UCMJ is not initiated. A copy of the signed decision by the GCMCA will be included with the records. 2. Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states 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 physical disability incurred or aggravated in service. It states the mere presence of an 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, grade, rank, or rating. It further states in: a. Paragraph 4-1, a Soldier cannot be referred for, or continue disability processing when the Soldier is charged with an offense under the UCMJ which could result in a punitive discharge. b. Paragraph 4-3, an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of UOTHC. It further states the GCMCA may abate the administrative separation if the Soldier’s medical condition is the cause or substantial contributing cause of the misconduct that might result in a discharge under other than honorable conditions. The GCMCA must sign the decision and forward it with a copy of the disability case file to the PEB. The authority cannot be delegated. c. Paragraph 4-9, the MTF commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation. If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB. 4. Army Regulation 40-400 (Medical Services – Patient Administration) states in paragraph 7-5 that in cases involving separation under the provisions of Army Regulation 635-200, when it appears that a mental illness, medical condition, or physical defect is the direct cause of unfitness or unsuitability, that individual will be processed under the PDES. Referral into the PDES takes precedence over enlisted administrative separations except where the regulatory provisions authorize a discharge characterized as UOTHC. 5. OTSG/Medical Command (MEDCOM) Memorandum 10-040, dated 9 June 2010, subject: Screening Requirements for PTSD and mild TBI (mTBI) for Administrative Separations of Soldiers, outlines procedures for PTSD and mTBI screening. It states that for all Soldiers considered for administrative separations who require a mental status evaluation, or who have been deployed overseas in support of a contingency operation, and who are diagnosed by a physician, clinical psychologist, or psychiatrist as experiencing PTSD or mTBI, or who otherwise reasonably allege, based on their service while deployed, the influence of such a condition: a. MTF commanders will ensure that all Soldiers are screened for PTSD and mTBI during routine mental health evaluations for administrative separations or for any case involving Soldiers diagnosed with or reasonably asserting PTSD or mTBI. b. Soldiers who screen positive for PTSD or mTBI, or who have already been diagnosed by a physician, clinical psychologist, or psychiatrist as experiencing PTSD or mTBI, will receive a full comprehensive examination to assess whether the effects of the PTSD or mTBI are contributing or related to the reason for separation. c. The result of the evaluation with a medical opinion as to the effects of mTBI and/or PTSD on the separation action will be provided to the commander for inclusion in the separation documentation and personnel files before separation proceedings can occur. 6. The Office of the Deputy Chief of Staff (ODCS) published All Army Activities (ALARACT) Message Number 159/2013, dated June 2012, subject: Enlisted Administrative Separation Processing – Final Medical Disposition, clarifying enlisted administrative separation processing for Soldiers identified as not meeting medical retention standard. It states: a. Except for separation in lieu of court-martial, final disposition through the disability evaluation system (DES) takes precedence over administrative separation processing, regardless of when the medical determination is made (either before, during, or after initiation of an administrative separation). b. The MTF commander or attending medical officer will refer to a MEB Soldiers who do not meet medical fitness standards for retention. A finding that a Soldier does not meet medical fitness standards for retention includes when the second signature is applied to the DA Form 3349 (Physical Profile) establishing a permanent “3” or “4” in any PULHES factor for a duty-related condition. c. When either the MTF Commander or attending medical officer determines a Soldier does not meet retention standards, the separation authority will not take final action on the administrative separation action until after a final medical retention determination is made. 7. The Army Task Force on Behavioral Health published a Corrective Action Plan in January 2013 stating: a. On 15 May 2012, the Secretary of the Army (SA) directed the Under Secretary of the Army and the Vice Chief of Staff, Army (VCSA), to take a holistic look and identify systemic breakdowns or concerns in the Integrated Disability Evaluation System (IDES) affecting the diagnosis and evaluation of behavioral health conditions. To accomplish this, the SA’s directive established the Army Task Force on Behavioral Health (ATFBH) to assist the Under Secretary and VCSA in conducting a comprehensive review and developing a corrective action plan (CAP) to address and rectify any identified breakdowns or concerns. b. Current Situation: The Army has devoted an extraordinary amount of time, attention, and resources to care for Soldiers returning from deployments, especially those with behavioral health conditions. The Army continues to make great strides in changing the culture that stigmatized those with PTSD and to educate and encourage Soldiers and leaders to heal these invisible wounds of war. The Army has revised several policies to ensure Soldiers with PTSD are properly diagnosed and, if appropriate, considered for a medical discharge. Most recently, the Army proactively implemented several initiatives to resolve some of the findings discovered during the ATFBH comprehensive review. These changes are positive steps for our wounded, ill, and injured, and the CAP details subsequent actions required to achieve a more efficient and effective disability system for Soldiers with behavioral health conditions. c. With regard to administrative discharges for misconduct, simultaneous processing for administrative discharge and medical discharge is possible. However, suspension of final action for administrative discharge must occur at three key decision points to determine whether the Soldier will proceed through the IDES or receive an administrative discharge. Those three decision points occur: at the completion of the MEB; with the GCMCA decision; and when the PEB renders the fitness determination. d. Upon receiving the MEB decision to refer to the PEB the GCMCA must decide to pursue either administrative separation or direct the Soldier’s referral to a PEB. In making this decision, the GCMCA must consider whether the Soldier’s medical condition is the direct or substantial contributing cause of the misconduct that led to the recommendation for administrative separation, and whether other circumstances of the individual case warrant disability processing. The GCMCA's decision and the basis for that decision must be documented. e. Despite the efforts to provide policy guidance on separation procedures, the Department of the Army Inspector General found confusion still exists regarding all of the options available to commanders when Soldiers are in the IDES. DISCUSSION: 1. The applicant requests a medical retirement and an upgrade of his under honorable conditions (general) discharge to an honorable discharge. 2. On 25 February 2011, the applicant was discharged by reason of misconduct, commission of a serious offense, in accordance chapter 14-12c, Army Regulation 635-200. His medical records show a diagnosis of PTSD but there are various assessments by different providers as to whether or not his condition met medical retention standards. These conflicting assessments are evident in the fact that a legal review of the applicant’s administrative board proceedings stated there was no evidence that any MTF commander or attending medical officer determined the applicant did not meet retention standards, nor evidence that he had begun the MEB process. Given this information, it is understandable that the applicant’s separation proceedings do not contain a decision from the GCMCA as to the disposition of his case through medical channels as required by regulation. 3. On 18 October 2012, through court remand, this Board reconsidered, in part, his request to be reinstated on active duty for separation processing under the PDES. The Board found the applicant’s separation processing was in accordance with applicable regulatory guidance and denied his request. The Board found the applicant was not referred by proper authority and was technically being evaluated in a “pre-MEB” status. Further, the Board found there was insufficient evidence showing his medical conditions failed to meet retention standards and that his extensive disciplinary history subjected him to adverse actions which could have resulted in a UOTHC discharge, therefore preventing him from being referred to or continued in the PDES. 4. On 22 January 2015, under separate court remand and as the result of Secretary of Defense’s guidance, the Board reconsidered his request to upgrade his discharge and determined that PTSD most likely contributed to the misconduct that led to the discharge. His discharge was upgraded to under honorable conditions (general) and his rank was restored to SGT/E-5. 5. The OTSG advisory official stated the applicant was diagnosed with PTSD on three different occasions: at admission to inpatient PTSD/TBI program in July 2009; in an MEB completed on 16 March 2010, and a CDBHE completed in April 2010. The preponderance of evidence indicates that he met criteria for PTSD and that his condition did not meet medical retention standards at the time of his discharge on 25 February 2011. 6. The DOD medical and personnel communities continue to improve the evaluation, treatment, support, and education of individuals suffering from PTSD/mTBI. Included in this effort is the separation processing of individuals with PTSD. Current policies and regulations were clarified in June 2012. The clarification emphasized that when either the MTF Commander or attending medical officer determines a Soldier does not meet retention standards, the separation authority will not take final action on the administrative separation action until after a final medical retention determination is made. 7. The OTSG advisory opinion and the June 2012 ODCS ALARACT Message indicate that, in the interest of equity, there is a basis for referring the applicant's records to an MEB for review and, if appropriate, subsequent referral to an informal PEB. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003614 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003614 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2