IN THE CASE OF: BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20150019090 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: 19 January 2017 DOCKET NUMBER: AR20150019090 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: 19 January 2017 DOCKET NUMBER: AR20150019090 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 records to show he was medically retired vice honorably discharged. 2. The applicant states: a. He served to his expiration of term of service (ETS) and was honorably discharged after serving from 8 November 2001 to 1 September 2013 and serving through four deployments. He had three 12 month tours and one 15 month tour. He incurred both mental and physical health issues while in the service but was never given the opportunity to go through the Army medical evaluation board (MEB) process. b. Upon his release from the Army, he has been treated by the Department of Veterans Affairs (VA) and received a disability rating of 80 percent for his combined mental and physical disabilities. He is currently being reevaluated for a higher rating. He does not see how the VA could recognize the extent of his injuries but the Army found nothing wrong or worthy of an MEB. c. After he got out of the Army, he was left for months without any mental health support, physical support or treatment, financial support, or insurance to help him with his mental and physical needs. He is asking that he be medically retired from active duty service. d. He was rated at 80 percent disabled by the VA, 70 percent for post-traumatic stress disorder (PTSD), anxiety, and depression, and 10 percent for physical conditions. His medical records indicate his mental and physical health conditions while he was in the service. He had ongoing health issues from his service that will require treatment indefinitely. All of his medical issues were treated while he was on active duty. He inquired about the MEB process and was never given any information or recommendations. 3. The applicant provides a VA Rating Decision. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 8 November 2001 and he held military occupational specialty 13B (Cannon Crewmember). He served in Iraq from 6 November 2003 to 15 November 2004, 7 November 2005 to 1 November 2006, 5 April 2008 to 22 May 2009, and 12 March 2010 to 16 March 2011. 2. He reenlisted in the RA on 2 September 2008; his adjusted ETS was 1 September 2013. He was assigned to B Battery, 3rd Battalion (BN), 29th Field Artillery (FA) Regiment, Fort Carson, CO. On 1 June 2011, he was promoted to staff sergeant (SSG)/E-6. 3. In January 2012, he received a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), for the rating period 1 June 2011 through 16 January 2012, for his duties as a Howitzer Section Chief in MOS 13B, B Battery, 3rd BN, 29th FA. This NCOER shows, in part, he received "Success" ratings in Parts IVb (Competence), IVc (Physical Fitness & Military Bearing), IVd (Leadership), and IVf (Responsibility & Accountability). Part IVc contains the bullet comments "Soldier is on profile and unable to participate in the APFT [Army Physical Fitness Test]; performs all assigned duties" and "confident NCO; faces and overcomes any obstacle with a positive attitude." 4. He subsequently received orders for a 3-year tour of duty in Europe with a report date of 10 October 2012. He was notified that as his ETS was 1 September 2013 he needed to reenlist or extend to have 36 months of service to complete his overseas assignment. 5. On 20 July 2012, the applicant signed a DA Form 4991 (Declination of Continued Service Statement). On this form, he acknowledged that he had been counseled on his options to acquire sufficient remaining service to satisfy the service requirement but refused to take the necessary action to meet the length of service. He also acknowledged that he understood, in part, that he would be placed in a nonpromotable status and prohibited from reenlistment or extension of his enlistment. 6. In January 2013, he received an NCOER for the rating period 17 January 2012 through 16 January 2013, for his duties as a Howitzer Section Chief in MOS 13B, B Battery, 3rd BN, 29th FA. This NCOER shows, in part, he received "Success" ratings in Parts IVb, IVc, IVe, and IVf. Part IVc contains the bullet comments "Soldier was untested on APFT due to physical profile" and "profile does not hinder duty performance." 7. In August 2013, he received an NCOER for the rating period 17 January 2013 through 6 August 2013 for his duties as Platoon Sergeant in MOS 13B, B Battery, 3rd BN, 29th FA. This NCOER shows he received all "Success" ratings in Parts IVb through IVf. Part IVc contains the bullet comments "scored a 255 on the last APFT" and "conducts extensive physical training on his own, ensuring he is combat ready." 8. He was honorably discharged on 1 September 2013 in the rank of SSG. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 11 years, 9 months, and 24 days of net active service and was discharged under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, by reason of completion of required active service. 9. There is no evidence in his available record that shows while serving on active duty he was treated for, or diagnosed with, any medical condition/disorder that permanently prevented him from performing his assigned duties, was found to be unfitting, or required referral to an MEB or physical evaluation board (PEB). There is no evidence showing while serving on active duty that he ever received a permanent profile of "3" requiring referral to an MEB/PEB. 10. The applicant provides a VA Rating Decision, dated 27 February 2015, which was forwarded to the Psychologist/Medical Advisor, Army Review Boards Agency (ARBA) for review. 11. In the processing of the case an advisory opinion was received on 8 November 2016 from the Psychologist/Medical Advisor, ARBA. The advisory official opined: a. A medical advisory opinion was requested for review of the applicant's application and associated records, including available medical documentation to address the following: (1) Does the available record reasonably support PTSD or another boardable behavioral health condition existed at the time of the applicant’s military service? (2) Did this medical condition fail medical retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness) warranting separation through medical channels? (3) Is the condition a mitigating factor in the conduct that resulted in the applicant’s discharge from the military? (4) Any additional information deemed appropriate. b. The applicant was honorably discharged on 1 September 2013 and is petitioning for a change of his discharge to a medical retirement. The documents reviewed were the applicant's electronic medical record (AHLTA), limited review of VA records through the Joint Legacy Viewer (JLV), interactive JLV, Interactive Personnel Electronic Records Management System (iPERMS), and evidence the applicant submitted. c. The applicant served in in the Army from 8 November 2001 to 1 September 2013. During his time in service, he stated that he had four deployments. He was first diagnosed with PTSD in January 2013 and had four additional therapy sessions after his diagnosis. He was also diagnosed as having chronic pain in January 2013 and had four visits for sessions after that diagnosis. He had a diagnosis of an anxiety disorder as far back as 2008. He was evaluated [by the VA] as having a 70 percent disability rating for PTSD on 27 February 2015, which was effective 12 January 2014. He received an additional 10 percent disability rating for physical disabilities. d. The applicant asked the ABCMR to reevaluate his discharge on the grounds that his PTSD rating should have led to his being medically retired from the Army. There is no evidence in his medical record showing his medical providers believed that the applicant was unable to do his work owing to PTSD or that he had a year-long opportunity to recover from his PTSD by receiving appropriate treatment for it. In the 7 months from the time of his diagnosis of PTSD in January 2013 until his discharge on 1 September 2013, the provider never opined that the applicant did not meet, or needed to be treated to enable him to meet, Army medical retention requirements. He wrote no "S3" [Psychiatric] profile in the applicant’s medical records. An applicant’s failure to meet the regulatory standard for an MEB referral does not mean that his diagnosis and VA rating are incorrect. The VA conducts evaluations based on different standards and regulations than the Army does. A VA diagnosis and disability rating does not determine an entitlement to a medical retirement or separation. e. The applicant’s record does show he had PTSD during his active duty service; however, the applicant did not meet the standards for entry into the Army Physical Disability Evaluation System (PDES). The applicant has not produced any medical evidence from his period of service showing he was incorrectly discharged. f. Based on the information provided by the applicant and a review of relevant records and regulations, the applicant’s claim that he should have been medically retired from the military because of his PTSD or other behavioral health disorders, including anxiety and depression, is unsubstantiated. 12. On 14 November 2016, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. a. It provides for MEBs which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's medical status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of AR 40-501. b. It states 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/degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his/her office, rank, grade, or rating. The Army must find that a service member is permanently physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired. 2. The Army physical profile serial system is based primarily upon the function of body systems and their relation to military duties. The functions of the various organs, systems, and integral parts of the body are considered. An individual having a numeric designation of "1" under all factors is considered to possess a high level of medical fitness. A physical profile designator of "2" under any or all factors indicates an individual possesses some medical condition or physical defect that may require some activity limitations. A profile containing one or more numerical designations of "3" signifies the individual has one or more medical condition that may require significant limitations. A permanent profile of "3" would require referral to an MEB. 3. Title 10, U.S. Code (USC), 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, USC, 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. 4. Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. 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. DISCUSSION: 1. The evidence of record confirms the applicant was honorably discharged from active duty upon his ETS on 1 September 2013 in the rank of SSG. He was properly discharged upon his ETS based his declination of continued service statement signed on 10 October 2012. 2. Although he may have been granted service-connected disability by the VA after his discharge, as stated by the medical advisory official, there is no evidence in his available record and he did not provide any evidence showing while he was serving on active duty he was diagnosed with any mental/medical condition that permanently prevented him from performing his military duties and would require referral to an MEB/PEB or that he ever received a permanent profile of "3." In fact, his performance evaluations show he performed his assigned duties successfully, to include passing his APFT. 3. A disability decision rendered by another agency does not establish an error on the part of the Army. Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining the medical fitness of a Soldier to perform their military duties. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150019090 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150019090 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2