BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017225 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 BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017225 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. BOARD DATE: 4 April 2017 DOCKET NUMBER: AR20150017225 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 correction of his December 2011 discharge to show a medical retirement or at least medical discharge, due to adjustment disorder with mixed anxiety and depressed mood. 2. The applicant states he was discharged due to a diagnosis of adjustment disorder with mixed anxiety and depressed mood. He did not have any mental conditions upon his entry into the Army. He was rushed out of the service and given an uncharacterized discharge. As a result, he continues to experience difficulties finding work. He also began a treatment program in Puerto Rico for this disorder. It is his opinion that he should have received a medical retirement. 3. The applicant provides: * Military Entrance Processing Command Enlistee Record * Immunization Record * Supplemental Health Screening Questionnaire * DD Form 2807-2 (Medical Screening of Medical History Report) * Medical Diagnosis * Psychiatric discharge summary * DD Form 2807-1 (Report of Medical History) * DD Form 2808 (Report of Medical Examination) * Department of Veterans Affairs (VA) Disability Benefits Questionnaire * VA correspondence * In-service and post-discharge medical records 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. The applicant enlisted in the Regular Air Force on 13 April 2004 but he was discharged on 26 April 2004 with an uncharacterized discharge due to entry level performance and conduct. 3. He enlisted in the Puerto Rico Army National Guard (PRARNG) on 3 October 2011, in pay grade E-2, for 7 years and 32 weeks. He enlisted for training in military occupational specialty (MOS) 12B (Combat Engineer) and assignment to the 130th Engineer Battalion 4. He entered active duty for training (ADT) on 25 October 2011. He was assigned to Fort Leonard Wood, MO, for completion of training. 5. During the training, the applicant displayed adjustment disorder in the context of separation from his primary support and the stress of basic training. The service medical records he provides, together with the DA Form 4707 (Entrance Physical Standard Board (EPSBD) Proceedings), dated 15 November 2011, show: a. He is without acute complaint at time of his discharge. He endorses resolution of depressive symptoms and compulsive homicidal ideation. He endorses feeling safe on the ward and is appreciative of "supportiveness and professionalism" of ward staff. He endorses eager anticipation of his discharge. He is alert and oriented and in no acute distress. He has appropriate behavior and maintains good eye contact. His motor activity is neutral. His speech is within normal limits. His mood is very good. His affect is euthymic and congruent. His thought process is linear, logical and goal directed. Thought content is not manic/psychotic. Judgment is grossly intact and insight is fair. b. He is a 27-year old male with history of anxiety and depressive symptoms that existed prior to service (EPTS), and recent adjustment disorder with anxious and depressed mood who is now demonstrating stability on the inpatient ward without psycho-pharmacologic intervention. His diagnosis * Axis I: Adjustment disorder with mixed mood * Axis II: Dependent traits * Axis III: Mild lower back pain * Axis IV: Separation from primary support, and occupational stress * Axis V: Current Global Assessment of Functioning (GAF) is 55 c. The plan of action is to continue on Atarax 25 milligrams orally at bedtime for sleep and continue Flexeril 10 milligrams orally three times daily as needed for lower back pain. Additionally, continue outpatient individual therapy and medication management appointments scheduled. d. The recommendation: He is clearly not eligible for training. The service member has mental health conditions that existed prior to service. If detected at the time of enlistment, these would have prevented enlistment in the military. He should be immediately removed from all training and physical training. He should not have access to weapons or sensitive information. He should be expeditiously separated from active duty as a result of not meeting the requirements of Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 2-27, and in accordance with paragraph 5-11 of AR 635-200 (Active Duty Enlisted Administrative Separations). 6. On 21 November 2011, the medical approving authority approved the findings shown on the DA Form 4707. The medical approving authority forwarded the EPSBD Proceedings to the applicant's unit for appropriate action in accordance with paragraph 5-11 of AR 635-200. 7. On 28 November 2011, the applicant acknowledged that he was informed of the medical findings. He acknowledged he understood that legal advice of an attorney employed by the Army was available to him and that he could consult with civilian counsel at his own expense. He further acknowledged he understood he could request to be discharged from the Army without delay or request retention on active duty. After counseling, the applicant concurred with the proceedings and requested to be discharged from the Army without delay. 8. On 30 November 2011, the separation authority approved the applicant's separation from the Army under the provisions of AR 635-200, paragraph 5-11, by reason of failure to meet procurement medical fitness standards. 9. On 5 December 2011, the applicant was discharged from active duty. His DD Form 214 shows he completed 1 month and 11 days (41 days) of net active service this period. His DD Form 214 shows he was discharged under the provisions of AR 635-200, paragraph 5-11. The narrative reason for separation was "failed medical/physical/procurement standards" and his service was uncharacterized. 10. On 5 December 2011, he was also discharged from the PRARNG with an uncharacterized discharge. 11. On 16 July 2013, the Army Discharge Review Board (ADRB) reviewed his petition for an upgrade of his discharge but found his discharge was proper and equitable. The ADRB denied his petition for an upgrade of his discharge. 12. He provides selected medical records that were used during his separation. He also provides a VA Summary of Benefits as well as an appeal to the Board of Veterans Appeals. His medical documents were forwarded to the Army Review Boards Agency senior medical advisor for review. On 10 November 2016, the medical advisor rendered an advisory opinion in the applicant's case. He stated: a. The Case Management Division (CMD) requested medical advisory opinion review of this case for: Alleged medical condition(s) warranted separation through medical channels or medical condition(s) not considered during medical separation processing. The applicant’s DD Form 214 (ARNG) indicated an uncharacterized separation (character) and Failed Medical/Physical/ Procurement Standards (narrative reason for separation) per AR 635-200 paragraph 5-11 for service from 25 October 2011 to 5 December 2011 with no time lost. He is petitioning for a medical discharge due to diagnosis of adjustment disorder with mixed anxiety and depressed mood. b. His Medical Prescreen of Medical History Report (DD Form 2807-2), dated 28 September 2010, with all "No" responses. Report of Medical History (DD Form 2807-1), dated 13 October 2010, with all "No" responses, PULHES "1-1-1-1-1-1," qualified for service. Report of Medical Examination (DD Form 2808), dated 13 October 2010, with unremarkable clinical evaluation. Supplemental Health Questionnaire (USMEPCOM Form 40-1-15-E) completed by applicant on 13 October 2010 with all "No" responses except alcohol (monthly or less). A review of the applicant’s electronic medical record (AHLTA) revealed clinical encounters between October and November 2011. c. Also reviewed were the Inpatient Medical Record (6 through 10 November 2011) for Adjustment Disorder with mixed anxiety and depressed mood, suicidal ideation, dependent personality disorder, and tobacco use disorder. Applicant arrived at training on 25 October and began experiencing suicidal thoughts shortly after arriving at unit and taken to emergency room on 3 November (with 3-day history of suicidal ideation; note: onset 5 days after arrival at Fort Leonard Wood). Pre-enlistment history notable for 5 years of working for a construction company, laid off and unable to find employment for several years, significant financial difficulties and "lost everything." "He talked about selling his belongings and having days when he had no food." Past history of Air Force enlistment at age 20 years, discharged after 14 days due to language barrier. He had a Physical Profile (DA Form 3349) on 10 November 2011 for Adjustment Disorder with mixed anxious and depressed mood, temporary PULHES-"1-1-1-1-1-3" (expires on 8 February 2012). d. The EPSBD Proceedings, dated 15 November 2011, with history of anxiety and depressive symptoms (EPTS – existed prior to service) and diagnosis on Axis 1 – Adjustment Disorder with mixed mood; Axis II – Dependent traits; Axis III – mild lower back pain; Axis IV – separation from primary support, occupational stress; and Axis V – GAF of 55. Follow-up behavioral health visits on 17 and 28 November 2011 with much improved mood and affect. The Department of Veterans Affairs (VA) Mental Disorder (other than post-traumatic stress disorder (PTSD) and Eating disorders) Disability Benefits Questionnaire completed on 7 January 2016 by a psychiatrist with diagnosis on Axis I- Chronic Adjustment Disorder with mixed Anxiety and Depression; Axis 2 – none; Axis III – none; Axis IV – unemployment, economical; Axis V – GAF 45/50; other symptoms: Agoraphobia and claustrophobia. Additionally, a medical statement by the same provider “[Applicant] hasn’t been able to work for more than 3 years. His condition at present is chronic in evolution with no remission, in spite of continuous treatment. He is still unable to work due to the symptoms of this mental condition connected to his service. His diagnosis: Chronic Adjustment Disorder with mixed anxiety and depressed mood, which directly relates to previous service connected diagnosis of Adjustment disorder with mixed anxiety and depressed mood.” e. VA Rating Decision, dated 18 April 2016, with Chronic Adjustment Disorder with mixed anxiety and depressed mood (previously rated as anxiety disorder with claustrophobia) from 30 percent effective 19 February 2013, to 70 percent effective 12 January 2016. Limited review of VA records through the JLV (Joint Legacy Viewer) with 14 problems listed (5 from VA). f. The applicant did not meet medical accession standards for EPTS anxiety and depressive symptoms (related to years of unemployment and financial problems by history) in accordance with chapter 2, AR 40-501, and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service. Less than one week after arrival, he had significant suicidal ideation. The applicant’s medical conditions were duly considered during medical separation processing. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 14. On 23 November 2016, the applicant responded to the medical advisory opinion. He stated he is submitting as evidence the very same letter he received from the Army Review Boards Agency but with a pink highlight in page 2. He is also submitting medical evidence from the VA hospital in San Juan, PR, Compensation and Pension (C&P) clinic examination done to him. The medical advisory states that "EPTS anxiety and depressive symptoms" were the cause of his discharge and using it as the basis for the opinion to find "No evidence" of medical disability or "condition" that would support a change to the character or reason for the discharge. In the VA document, there is medical evidence that will force the medical evidence from the Army Review Boards Agency to completely reject the medical advisory opinion and to grant him at least a 50 percent medical retirement as it should have happened when he was discharged in 2011. He did not have any mental condition before his Army service. His conditions began during his Army service, and today years letter, he still suffers from the mental conditions caused by the Army service. He is service-connected at 100 percent by the VA because of them. REFERENCES: 1. AR 635-200 sets forth the basic authority for separation of enlisted personnel. a. Paragraph 5-11 specifically provides that Soldiers who are not medically qualified under procurement medical fitness standards when accepted for enlistment, or who became medically disqualified under these standards prior to entry on active duty, active duty for training, or initial entry training will be separated. A medical proceeding conducted by an EPSBD, regardless of the date completed, must establish that a medical condition was identified by appropriate medical authority within 6 months of the Soldier's initial entrance on active duty, the condition would have permanently or temporarily disqualified the Soldier for entry into the military service had it been detected at the time of enlistment, and the medical condition does not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3. The characterization of service for Soldiers separated under this provision will normally be honorable, but will be uncharacterized if the Soldier has not completed more than 180 days of creditable continuous active duty service prior to the initiation of separation action. b. An uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable conditions is authorized by the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. c. Paragraph 3-7a states that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. 2. AR 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service. Examples are manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service. 3. AR 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation. Chapter 2 provides the physical standards for enlistment/induction. Paragraph 2-11 refers to conditions which may result in failure of procurement standards. DISCUSSION: 1. The evidence of record shows medical authorities determined that he suffered from a disqualifying medical condition that existed prior to service immediately after reporting for active duty. According to accepted medical principles, the manifestation of a chronic disease from the date of entry into active military service (or so close to that date of entry that the disease could not have started in so short a period) is accepted as proof the disease existed prior to entrance into active military service. 2. His records were evaluated by an EPSBD that found him medically unfit for a condition that was neither incurred in nor aggravated by his active service. There was compelling evidence to support a finding that he had a preexisting condition. Accordingly, the EPSBD recommended his separation. He was counseled and advised of his rights, and he elected a discharge from the Army without delay. All his rights were fully protected throughout the separation process. 3. As for the characterization of his service, a member's service is under review during the first 180 days of continuous active military service. When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant a discharge under other than honorable conditions. An honorable characterization may be issued only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and is approved by the Secretary of the Army. 4. In all other circumstances, an uncharacterized separation is issued regardless of the reason for separation. An uncharacterized discharge is neither positive nor negative; it is not derogatory. It simply means the Soldier did not serve on active duty long enough for his or her service to be rated. The characterization of service he received was in compliance with the governing regulation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017225 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017225 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2