IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20160002413 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: 4 August 2016 DOCKET NUMBER: AR20160002413 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 Physical Disability Evaluation System (IDES) to determine if he should have been discharged or retired by reason of physical disability. a. In the event 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 PDES, 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 retired for disability without benefit of processing through PDES. __________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: 4 August 2016 DOCKET NUMBER: AR20160002413 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 by reason of permanent disability on 23 September 2005 vice honorably discharged by reason of a physical condition, not a disability. 2. The applicant states he was not offered an opportunity to continue his service due to post-traumatic stress disorder (PTSD). He was forced out of the Army even though he did not have PTSD prior to serving. He believes he should have been medically retired due to PTSD that developed during his period of service. 3. The applicant provides: * his DD Form 214 (Certificate of Release or Discharge from Active Duty) * Enlisted Record Brief (ERB), dated 4 August 2005 * a Report of Behavioral Health Evaluation * four Standard Forms (SF) 600 (Chronological Record of Medical Care), dated between 28 July and 1 September 2005 * DA Form 4856 (Developmental Counseling Form), dated 16 August 2005 * two memoranda, both undated 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 Army on 6 February 2002 and held military occupational specialty (MOS) 13M (Multiple Launch Rocket System (MLRS) Crewmember). On 19 June 2002, he was assigned to Battery C, 6th Battalion (BN), 27th Field Artillery (FA) Regiment, Fort Sill, OK. 3. He served in Iraq with his assigned unit from 11 April to 20 November 2003. 4. On or about 13 July 2005, he was assigned to Battery A, 6th BN, 27th FA, Fort Sill. 5. He provides and his record contains a Report of Behavioral Health Evaluation, dated 19 July 2005, wherein it shows he underwent a command-directed evaluation on that date at the Community Mental Health Services (CMHS), Reynolds Army Community Hospital (RACH), Fort Sill. Mr. TG, the examining clinical health social worker annotated the form to show: a. The applicant's behavior was normal, he was fully alert, his speech was normal, his mood and affect were depressed and angry, his thinking process was confused and tangential, his thought content was normal, and his judgment and impulse control were fair. b. It was his opinion that the applicant had no psychiatric disease or defect that warranted disposition through medical channels, the applicant had the mental capacity to understand and participate in proceedings, he had an impairing psychiatric condition that required treatment, and he was motivated to continue military service. c. The evaluation consisted of clinical interview and/or psychometric testing that indicated the applicant merited the diagnosis of acute PTSD and depressive disorder (not otherwise specified). d. The applicant had a follow up appointment with Mr. TG on 21 July 2005 and was psychiatrically cleared for any administrative action deemed appropriate by the command. e. Mr TG added that the applicant continued to experience nightmares, sudden flashes of anger, explosive verbal and physical expressions of anger, poor concentration, poor short term memory, and poor sleep related to his Iraq combat experiences. The applicant expressed great concern about his ability to focus sufficiently to help achieve military missions if he should deploy to Iraq. Mr. TG recommended the applicant be placed in a non-deployable status. 6. The applicant provides and his record contains a DA Form 4856, dated 16 August 2005, wherein it shows he was counseled by the first sergeant (1SG) on that date. The DA Form 4856 shows the 1SG indicated: a. The applicant was being processed for separation under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) [i.e., AR 635-200 (Active Duty Enlisted Administrative Separations)], paragraph 5-17 - other designated physical or mental conditions. The applicant was manifesting disturbances of thinking and emotional control that hindered his ability to effectively perform his military duties. b. The key points of discussion were the applicant's current state of health, his preparation for termination of military service, and his mandatory chapter briefing with Trial Defense Services (TDS). The 1SG stated, in part, an early separation even with a characterization of honorable service may reduce his chances to obtain either civilian or government employment, may preclude him from reenlisting in any of the Armed Forces, and he would not receive any money back from the Army College Fund. A general discharge would cause him to lose civil service retirement credit. c. The plan of action was for the applicant to be processed for separation under paragraph 5-17 and to attend the chapter briefing with TDS. The applicant signed the form and circled the appropriate block on the form to show he agreed with the counseling. 7. Although this DA Form 4856 shows the date of the counseling as 16 August 2005 on the front of the form, both the applicant and the 1SG signed the form and it shows the dates of both signatures as 15 August 2005. 8. The applicant provides an SF 600, dated 16 August 2005, wherein it shows he was seen by Mr. TG on this date at CMHS, RACH. The form shows the applicant's problems were: * chronic PTSD * adjustment disorder with disturbance of emotions * chronic fatigue syndrome 9. On 29 August 2005, he was notified by his immediate commander that separation action was being initiated against him under the provisions of AR 635-200, paragraph 5-17, for other designated physical or mental conditions (not a disability). He stated he was recommending he receive a general, under honorable conditions discharge. On 29 August 2005, he acknowledged receipt of the proposed separation action. 10. On 30 August 2005, he was advised by legal counsel of the basis for the separation action being initiated against him and the procedures and rights available to him. He acknowledged that he understood if he were issued a general discharge he could expect to encounter substantial prejudice in civilian life. His legal counsel stated on the form, "Please give [the Applicant] an honorable discharge. There is no justification in the record for giving this combat veteran anything less…Please note too, that [the Commander] recommended a general discharge without ever having met [the Applicant]." 11. In a statement submitted on his own behalf, the applicant stated he was requesting a discharge under honorable conditions. He felt he deserved this because he did not have any negative counseling or any Uniform Code of Military Justice (UCMJ) actions against him. He served in the Army for 3 years and 8 months and served with pride, honor, and dignity his entire tour. He spent 8 months in Iraq and lived up to all seven of the Army Values on and off duty. He strongly felt he should be discharged with an honorable discharge. 12. His senior commander subsequently recommended approval of the separation action with the issuance of an honorable discharge. 13. The separation authority subsequently approved his discharge and directed his service be characterized as honorable. On 23 September 2005, he was discharged accordingly. 14. The DD Form 214 he was issued shows he was discharged under the provisions of AR 635-200, paragraph 5-17, with an honorable characterization of service by reason of physical condition not a disability. He completed 3 years, 7 months, and 18 days of creditable active service. 15. In the processing of this case an advisory opinion was received from the Chief, Behavioral Health Division, Office of The Surgeon General (OTSG), on 25 May 2016. The advisory official stated his opinion was based on the information provided by the Board and records available in the Department of Defense electronic medical record (AHLTA). The advisory official opined: a. On 19 July 2005, the applicant's provider described him as experiencing "nightmares, sudden flashes of anger, poor concentration, poor short term memory, and poor sleep related to his Iraq combat service." The applicant expressed concern regarding his ability to focus in combat and the provider recommended he be placed on non-deployable status. b. Despite some variability in behavioral health diagnoses between PTSD and adjustment disorder in the applicant's record, the psychiatrist who saw him on 22 July 2005 diagnosed him with PTSD. c. Records indicate that the applicant was experiencing significant psychiatric symptoms and likely had PTSD at the time of his separation. The disturbed thought process and emotional control cited in the counseling were likely symptoms of a psychological condition that impaired his ability to perform his duties. According to AR 40-501 (Standards of Medical Fitness), paragraph 3-33(c), he failed to meet retention standards. 16. In a response to the advisory opinion received on 13 June 2016, the applicant stated, in effect: a. Having PTSD has been very difficult for him and his way of living; dealing with PTSD is an everyday struggle. Sometimes he can curb his sudden anger but more times than not he gets extremely upset for any reason. He has not been able to hold a single job for more than a couple of years at best. His poor sleep habits and lack of motivation are not helpful and not too many employers are willing to deal with his anger and emotional swings. b. PTSD has also had a very big impact on his personal relationships. He is currently on his third marriage; the previous two ended in divorce mostly due to his anger. It is a big letdown to him and them and he can definitely understand how they feel like he had no respect for them when he belittled and scolded them and got upset over issues that were not that big of a deal. c. He is the most upset about not being able to continue his military service. He feels ashamed and believes he was let down by his chain of command. He enjoyed his time in the service and was proud to be an Army Soldier. He did his job the best he could and strove to be a great asset to the military for years to come. It is a very hard pill to swallow to think about how his career was cut short due to no fault of his own. He felt like his chain of command started treating him differently when he started going to mental health. He was treated like he was a waste and needed to be shoved aside and replaced with another Soldier. This is still emotionally disturbing to him. REFERENCES: 1. AR 635-200 provides the basic authority for the separation of enlisted personnel. a. Paragraph 5-17 of the version then in effect stated that a commander may approve separations under this paragraph on the basis of other physical or mental conditions not amounting to disability and excluding conditions appropriate for separation processing that potentially interfere with assignment to or performance of duty. Such conditions, in part, included chronic airsickness, sleepwalking, dyslexia, severe nightmares, and claustrophobia. b. Other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. Soldiers with 24 months or more of active duty service may be separated under this paragraph based on a diagnosis of personality disorder. c. For Soldiers who have been deployed to an area designated as an imminent danger pay area, the diagnosis of personality disorder must be corroborated by the military treatment facility (MTF), Chief of Behavioral Health (or an equivalent official). The corroborated diagnosis will be forwarded for final review and confirmation by the OTSG. Medical review of the personality disorder diagnosis will consider whether PTSD, traumatic brain injury (TBI), and/or other comorbid mental illness may be significant contributing factors to the diagnosis. If PTSD, TBI, and/or other comorbid mental illness are significant contributing factors to a mental health diagnosis, the Soldier will not be processed for separation under this paragraph but will be evaluated under the physical disability system in accordance with AR 635-40. 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 medical evaluation boards (MEBs) and physical evaluation boards (PEBs) 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 the criteria in AR 40-501, chapter 3. 3. AR 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent. 4. 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 at less than 30 percent. 5. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e. a traumatic event) rather than an inherent individual weakness (i.e. a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 6. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. 7. The DSM fifth revision (DSM-5) was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. DISCUSSION: 1. The applicant served on active duty from 6 February 2002 to 23 September 2005 and served in Iraq from 11 April to 20 November 2003. The evidence of record confirms he was diagnosed in July 2005 with chronic PTSD, adjustment disorder with disturbance of emotions, and chronic fatigue syndrome that appears to have been severe enough to significantly impact his ability to effectively perform his military duties. 2. He was subsequently discharged on 23 September 2005 under the provisions of AR 635-200, paragraph 5-17, for a physical condition, not a disability. However, the governing regulation stated if PTSD was a contributing factor to a mental illness diagnosis, the Soldier would not be processed for separation under AR 635-200, paragraph 5-17, but would be evaluated under the physical disability evaluation system (PDES) under the provisions of AR 635-40. 3. It is obvious his unit made an error when they processed his separation action; he should have been entered in the PDES and appeared before an MEB/PEB to determine if his conditions were unfitting and permanently prevented him from performing his military duties. The evidence supports sending his records to an MEB/PEB to determine if he met the criteria for retention on active duty or a disability separation or retirement at the time of his discharge from active duty. After such a determination, his records may be corrected accordingly. 4. With respect to a medical retirement, Soldiers are medically retired if they are found to have unfitting conditions that permanently prevented them from performing their military duties and are rated at 30 % or higher at the time they are serving on active duty. The proposed record review would determine if he met the criteria for retention, disability separation, or disability retirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002413 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002413 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2