BOARD DATE: 9 November 2017 DOCKET NUMBER: AR20160003027 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. 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 November 2017 DOCKET NUMBER: AR20160003027 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 9 November 2017 DOCKET NUMBER: AR20160003027 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 the separation program designator (SPD) code currently listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty), amending it from "MBK" (voluntary release from active duty (REFRAD) due to completion of required active service) to an SPD code that reflects separation due to disability. 2. The applicant states, in effect, he is trying to receive Post 9/11 GI Bill education benefits, but he is unable to do so because the wrong SPD code is listed on his DD Form 214 for the period ending 29 June 2013. * he was deployed to Kuwait in support of Operation Enduring Freedom (OEF) * after about 30 days, he was hospitalized and medically evacuated to Fort Belvoir, VA * at Fort Belvoir, he was admitted to the psychiatric ward and received treatment; after his release from the hospital he was transferred to the Warrior Transition Unit (WTU), where he continued to receive outpatient treatment * he was recommended for early release due to his medical condition; he currently receives compensation for this medical condition * when he was separating, he was unable to sign his DD Form 214; therefore, he did not catch the SPD code error until after he was REFRAD 3. The applicant provides a DA Form 3349 (Physical Profile), dated 30 May 2013, and a memorandum, dated 6 June 2013, subject: Request for Early REFRAD [applicant]. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 6 April 2010. 2. He entered active duty for training on 29 June 2010 and he was awarded military occupational specialty 68W (Healthcare Specialist). He was honorably REFRAD on 21 January 2011. His DD Form 214 shows he completed 6 months and 23 days of net active service. 3. He was promoted to sergeant/E-5, effective 1 March 2013. 4. On 7 March 2013, he was ordered to active duty in support of OEF. He was deployed to Kuwait from 17 April to 19 May 2013. 5. Orders Number A-05-307378, dated 20 May 2013, issued by the Landstuhl Regional Medical Center (LRMC), showed a temporary change of station to Fort Belvoir so the applicant could receive medical treatment. On completion, he was to return to his permanent station. 6. Orders Number A-06-308282, dated 5 June 2013, issued by the U.S. Army Human Resources Command (HRC), retained the applicant on active duty and directed him to report to the WTU at Fort Belvoir effective 5 June 2013. The term was for 60 days (until 3 August 2013), and the purpose was to participate in the Reserve Component Warriors in Transition Medical Retention Processing Program for completion of medical evaluation. 7. Orders Number A-06-308282A01, dated 6 June 2013, issued by HRC, amended the end date of the previous order from 3 August to 29 June 2013. 8. Orders Number 169-0004, dated 18 June 2013, issued by U.S. Army Garrison (USAG), Fort Belvoir, showed the applicant was directed to be REFRAD, not by reason of physical disability, effective 29 June 2013. He was further reassigned for duty at a USAR Troop Program Unit (TPU) combat support hospital, Fort Meade, MD. 9. He was honorably REFRAD on 29 June 2013. His DD Form 214 shows he completed 3 months and 23 days of net active service. The section titled "Special Additional Information" indicates: * item 23 (Type of Separation) – REFRAD * item 25 (Separation Authority) – Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 4 (Separation for Expiration of Service Obligation) * item 26 (SPD) – "MBK" * item 28 (Narrative Reason for Separation) – completion of required active service 10. Following REFRAD, the applicant continued to drill with his troop program unit and accumulated retirement points as follows: * 7 April 2013-6 April 2014, 42 inactive duty points and 15 membership points * 7 April 2014-6 April 2015, 4 inactive duty points and 15 membership points * 7 April 2015-6 April 2016, 14 inactive duty points and 15 membership points * 7 April 2016-6 April 2017, 8 inactive duty points and 15 membership points 11. A review of his official military personnel file does not include orders or DD Forms 214 confirming other periods of active service, apart from what is noted above. His OMPF does reflect his assignments following his REFRAD: * Orders Number 16-221-00012, dated 8 August 2016, issued by Headquarters, 99th Regional Support Command, reassigned the applicant to the USAR Control Group (Reinforcement), effective 7 September 2016, due to expiration of his USAR service obligation * Orders Number C-08-710774, dated 14 August 2017, issued by HRC, reassigned the applicant from the USAR Control Group (Reinforcement) to a TPU located in Schofield Barracks, HI, effective 8 August 2017 12. The applicant provides: a. A DA Form 3349, signed by Major DD, a medical doctor, on 30 May 2013, that shows the applicant was given a temporary profile at a level "3" (significant limitations) for "S" (psychiatric); the profile shown as expiring on 28 August 2013. (1) Item 7 (Does the Soldier Meet Retention Standards in accordance with Chapter 3, AR 40-501?) contains two blocks indicating "YES/Needs MMRB (Military Occupational Specialty Medical Retention Board)" and "NO/Needs MEB (Medical Evaluation Board)"; neither block is marked. (2) Item 8 (Functional Limitations and Capabilities and Other Comments) states: * "EXPECTED DATE OF FULLY MISSION CAPABLE: 20130828" * "JUSTIFICATION COMMENTS FOR FULLY MISSION CAPABLE: Patient will NOT be considered fully mission capable from a psychiatric standpoint; Patient is being recommended for separation" * "DEPLOYMENT: This Soldier is medically nondeployable [in accordance with] applicable DOD (Department of Defense) and DA (Department of the Army) policies until cleared to deploy by written waiver from the applicable combatant Command Surgeon" b. Memorandum, dated 6 June 2013, Subject: Request for Early REFRAD [applicant], prepared by HRC and addressed the USAG, Fort Belvoir Transition Center, essentially states the request to REFRAD the applicant in accordance with AR 635-200, chapter 4 is approved; release date will be no later than 29 June 2013. 13. On 25 April 2017, the Army Education Incentives Branch, HRC, provided an advisory opinion and recommended disapproval of the applicant's request. a. To be eligible for Post 9/11 GI Bill education benefits at the 100 percent payable rate, a Soldier must serve on active duty, in a qualifying Post 9/11 GI Bill status, for a minimum of 36 months, or at least 30 continuous days when given a service-connected disability discharge. A review of the applicant's OMPF reveals he served twice in a qualifying active duty status: 15 November 2011 through 18 November 2011 and 7 March 2013 through 4 June 2013 (a total of 94 days). If the applicant has supporting documentation reflecting other periods of active duty, he should forward them to HRC. b. The applicant stated in his petition to the Board that he should have received a disability discharge for his service from 7 March to 29 June 2013. His DD Form 214, however, only indicates a REFRAD due to the completion of required active service. In addition, after his REFRAD, the applicant returned to his TPU, and continued to drill with his unit until his discharge on 7 September 2016 (sic, applicant was not discharged, but reassigned to the USAR Control Group (Reinforcement) because of the expiration of his USAR service obligation). c. The applicant established eligibility for the Post 9/11 GI Bill based on the aforementioned periods of service. The Muskogee Department of Veterans Affairs (VA) Regional Processing Office has calculated his total qualifying service and determined a Post 9/11 GI Bill payable rate of 40 percent. The VA Regional Office also affirmed the applicant started using his Post 9/11 GI Bill benefits at the 40 percent rate. His delimiting date is 4 June 2028, when he will exhaust his remaining benefits. If the reason for his REFRAD is changed to a disability discharge, he may be eligible for an increased percentage of the Post 9/11 payable rate. 14. On 10 May 2017, the Case Management Division (CMD) provided the applicant a copy of the HRC advisory opinion. He submitted the following response: a. The entire HRC advisory opinion should be disregarded; the recommendation to disapprove the request for an increase in his Post 9/11 GI Bill payable percentage is not relevant to this case. * his issue is the correction of the SPD on his DD Form 214, ending 29 June 2013 * he requests the Board to disregard that part of the advisory that mentions his educational incentives, as it does not serve as justification for or against the correction of his records; it is instead a motive for correction b. His request for the correction of his DD Form 214 is centered on the following: * his DD Form 214, ending 29 June 2013, shows the incorrect narrative reason for separation and SPD * the correct SPD should reflect a "service-connected disability discharge" * he was awarded a 40 percent disability rating by the VA for service-connected injuries sustained while on active duty from 7 March through 29 June 2013 * medical records and documentation from his treating physicians clearly state the physician's recommendation for separation c. In addition to the two documents already submitted with his application, he included Orders Number A-05-307378, dated 20 May 2013, issued by LRMC (cited above). 15. On 15 September 2017, the Army Review Boards Agency (ARBA) psychiatrist provided a medical advisory opinion. a. CMD requested an advisory opinion to determine: * whether the available record reasonably supports the existence of post-traumatic stress disorder (PTSD) or other behavioral health condition(s), while on active duty, which would be eligible for referral into the Disability Evaluation System (DES) * if behavioral health conditions are found, did those conditions fail medical retention standards * any additional information deemed appropriate to the case b. The ARBA psychiatrist reviewed the applicant's DOD electronic medical records and those records available through the VA's Joint Legacy Viewer (JLV). c. According to his military medical records: (1) On 18 May 2013, the applicant was seen in Theater for symptoms of depression and suicidal ideation. He was diagnosed with adjustment disorder with depressed mood, and was medically evacuated to Fort Belvoir Community Hospital where he was psychiatrically hospitalized. During the hospitalization, his diagnosis remained adjustment disorder with depressed mood. * during his intake interview he stated he became distressed when two Soldiers died in his clinic * he called his wife, but they argued and she told him she was starting divorce proceedings * he became panicked, felt emotionally overwhelmed, and reported homicidal and suicidal ideations; he was medically evacuated to Fort Belvoir via LRMC * at the Fort Belvoir hospital he did not report any suicidal or homicidal ideations; he was not started on any medications and was released on 29 May 2013 (2) On 30 May 2013, the applicant's WTU primary care manager (PCM) saw him and documented the following, stating, in effect: * applicant was evacuated from Kuwait due to self-reported suicidal and homicidal ideations (SI/HI); this was secondary to his discovery that his wife wanted a divorce * applicant indicated he "knew the system" and merely made statements so that he could return to the continental U.S. (CONUS) * on arrival at Fort Belvoir Community Hospital, he continued to report no true SI/HI * after being discharged from the hospital with a diagnosis of adjustment disorder, the applicant was not started on any psychotropic medications * during the 30 May 2013 visit, he screened negative for depression, alcohol abuse, and PTSD; his mood and affect were normal * the WTU PCM updated the applicant's temporary 90-day profile and wrote, "agree with plan to return to unit for REFRAD" d. The JLV does not specify his medical conditions, but indicates his combined disability rating is 50 percent. e. After reviewing all available medical records, the ARBA psychiatrist determined: * the applicant's medical records do not support the existence of PTSD or any other psychiatric diagnosis, at the time of his separation, that would be eligible for referral into the DES * the applicant's medical records show, except for his brief psychiatric hospitalization and a temporary 90-day psychiatric profile (S3), he otherwise met medical retention standards; disposition through military medical channels was not warranted 16. On 15 September 2017, CMD provided the applicant a copy of the ARBA medical advisory opinion. He submitted the following response: a. He requested the Board disregard the ARBA medical advisory in its entirety because of the following reasons: (1) Regarding the reference to the applicant's WTU PCM seeing him on 30 May 2013, this PCM became increasingly judgmental and concluded the applicant had fabricated "the ordeal" so that he could return home. He was asked if he understood the adverse repercussions to his military career, to which he responded in the affirmative. He nonetheless was confident his chain of command would take care of him. The quote ascribed to his PCM that he (the applicant) "knew the system" was taken completely out of context and is incorrect. He denies saying this. (2) The ARBA medical advisory states that, while he was in the hospital, he reported no SI/HI and was not started on any medications. This is not true; while in the psychiatric ward he was regularly administered Seroquel (an anti-psychotic medication). (3) On his release from care at the Fort Belvoir WTU, he divorced his wife and immediately moved to California (CA); he stayed with his mother for emotional support. While in CA, he had several bouts with depression and alcohol abuse, and there were several instances where he posed a danger to himself because of his PTSD, depression, and alcohol overconsumption. Despite what was happening, he denied having behavioral health problems and rejected help from his family. (4) It was not until he was arrested for public intoxication in CA, and for driving under the influence of alcohol in Nevada, that he was forced to get help. The court mandated substance abuse counseling. He continued to deny his alcohol and substance abuse because he feared it would lead to consignment to a psychiatric ward. b. Although he denied his problems, it was evident he needed help. It took him 4 years to reach out for behavioral health support. It was not until he decided to seek behavioral health support while pursuing his education that his SPD issue was discovered. He currently receives help through a program at the University of Hawaii. c. He continued to serve honorably in the USAR after the incident (apparently referring to the event that caused him to be medically evacuated from theater). He has recently transferred from the Inactive Ready Reserve to Active Reserve status, and plans to remain in this status until he completes his service obligation on 5 April 2018, after which he intends to reenlist for another term of service. d. To deny his behavioral health conditions because of an advisory opinion by a psychiatrist who never saw or spoke with the applicant, and after his conditions were medically diagnosed and recorded by an attending physician, would be irresponsible. He asserts the correction of his records should be made because of the attending physician's diagnosis; "let the medical records show as proof." REFERENCES: 1. AR 635-5-1 (SPD Codes) shows "MBK" is used for Soldiers who have completed their required active service. The regulatory cite is AR 635-200, chapter 4, and the narrative reason for separation is "completion of required active service." 2. AR 40-400 (Medical Services - Patient Administration), in effect at the time, prescribed policies and mandated requirements for governing the management and administration of patients. It also provides guidance on medical evaluation board (MEB) procedures in chapter 7 (Military Personnel Physical Disability Processing). a. Physicians who identify Soldiers with medical conditions not meeting fitness standards for retention will initiate a DA Form 3349 and refer them into the DES. b. Soldiers issued a permanent profile with a numerical designator of 3 or 4 in one of the physical profile factors who meet retention standards are referred to the military occupational specialty (MOS)/medical retention board (MMRB). When they do not meet retention standards, MEB referral is mandatory, but not all MEBs require adjudication by a physical evaluation board (PEB). c. MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the member's medical status. 3. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement. a. Chapter 3 provides guidance for the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for service. b. Chapter 7 provides guidance for the physical profile serial system. The profile is based on the function of body systems and their relation to military duties. There are six factors, designated as: * "P" for physical capacity or stamina * "U" for upper extremities * "L" for lower extremities * "H" for hearing * "E" for eyes * "S" for psychiatric c. Each factor is assigned a numerical designation from 1 to 4. * "1" represents a high level of medical fitness * "2" means there are some activity limitations * "3" equates to significant limitations * "4" indicates defects of such severity military duty performance is -drastically limited e. The DA Form 3349 (Physical Profile) is used to record both permanent and temporary profiles. 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Chapter 3 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. b. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. 5. DOD Manual (DODM) 1332.18, Volume 2, prescribes policies and procedures for the processing of Soldiers with duty-related disabling medical conditions. a. The Integrated Disability Evaluation System (IDES) is a joint DOD and VA process by which it is determined if Soldiers who have been wounded, ill, or injured are fit for continued military service. b. In consultation with the Soldier's commander and on approval by the MEB convening authority, a military medical provider refers a Soldier with disabling medical conditions to IDES. (1) The VA provides the medical examinations (identified as C&P examinations) of the disabling conditions. Then, applying the findings of the VA's medical examinations, an MEB makes an assessment to identify those medical conditions that fail to meet medical retention standards. All conditions failing retention standards are referred to a PEB for a fitness determination. (2) Conditions found by the PEB to be unfitting are sent to the VA for a disability rating. In determining the rating(s) to be assigned, the VA uses the VA Schedule for Rating Disabilities (VASRD). Each rated disability is assigned a code by VA in accordance with the schedule of ratings within the VASRD. (3) Upon receipt of the disability rating(s) from the VA, the results are finalized and the disposition can include the Soldier being returned to duty or separated (either with severance pay, if the total disability rating is 20 percent or less, or retired, for those cases where the disability rating is 30 percent or higher). 6. DOD Instruction (DODI) 1332.38 (Physical Disability Evaluation), in effect at the time, identified adjustment disorder as a condition which did not constitute a physical disability and, thus, was not ratable. 7. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities incurred during, or aggravated by, active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. a. Title 10, U.S. Code, chapter 61 (sections 1201 through 1221) establishes guidance for retiring or separating military service members for physical disability. In implementing this law, the Army rates only conditions determined to be physically unfitting, at the time of discharge, that disqualify the Soldier from further military service. The Army's disability rating compensates the Soldier for the loss of a military career. b. The VA does not have the authority or responsibility for determining physical fitness for military service. 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. c. As a result, these two Government agencies, operating under different laws and policies, may arrive at a different disability rating for the same impairment. 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. Concerning the SPD code listed on his DD Form 214 for the period ending 29 June 2013, AR 635-5-1 shows this is the correct code for Soldiers who are REFRAD after completing their required active service. The evidence of record, as well as the HRC memorandum submitted by the applicant, reflects this was the basis for his separation. 2. With regard to the applicant's assertion he should receive a disability discharge: a. The applicant bases his argument on a DA Form 3349, dated 30 May 2013, that shows a temporary profile, level "3" (significant limitations) for the factor "S" (psychiatric). (1) By regulation, active duty Soldiers with permanent level "3" (significant limitations) and/or level "4" (severe limitations) physical profiles qualify for referral into the DES. Medical conditions for which a temporary physical profile has been assigned, regardless of level, do not qualify for referral into the DES. (2) There is no evidence that he was ever issued a permanent level "3" physical profile for a behavioral health or any other medical condition. b. When Soldiers are referred into the DES: (1) An MEB evaluates whether the disabling conditions fail medical retention standards. When determined to fail retention standards, the Soldier's cases are referred to a PEB to assess whether the Soldier is fit, or unfit for continued military service. (2) In those cases where the PEB concludes the Soldier is unfit, he/she is separated, with possible outcomes that include separation with or without severance pay, or retirement (temporary or permanent). All possible outcomes result from the PEB's determination the Soldier is no longer capable of performing the duties and requirements of his or her military occupational specialty and rank. c. In this case, the applicant not only continued to serve in a TPU after his REFRAD, but states he is currently serving and plans to reenlist at the end of his obligated service. While it is commendable that he wishes to continue his military service, the applicant's statements do not appear consistent with a Soldier who, due to a disabling medical condition, can no longer fulfill the requirements of Soldiering. In addition, there is no evidence that would show he is unable to perform the duties required of his rank and MOS. 3. The applicant argues, in effect, the Board should only consider the recommendation made by his physician on the DD Form 3349, dated 30 May 2013. He further argues, "let the medical records show as proof." The ARBA psychiatrist, however, reviewed those same records when the advisory opinion was prepared, and cited references directly from those records. Based on that review, the ARBA psychiatrist found: a. On his admission to the psychiatric ward at Fort Belvoir, the applicant's intake interview revealed he had become distressed when two Soldiers died in his clinic. He called his wife, but they argued and she told him she was starting divorce proceedings. He became panicked, felt emotionally overwhelmed, and reported homicidal and suicidal ideations. He was diagnosed with adjustment disorder with depressed mood, and medically evacuated from theater. b. While hospitalized at Fort Belvoir, he did not report any suicidal or homicidal ideations; his diagnosis of adjustment disorder did not change. He was released from the hospital on 29 May 2013. After his hospital discharge, his adjustment disorder diagnosis was continued and he was prescribed no psychotropic medications. c. On 30 May 2013, he was issued a temporary physical profile by Dr. DD reflecting a level "3" in factor "S." d. Also on 30 May 2013, and during a visit with his WTU PCM, the applicant screened negative for depression, alcohol abuse, and PTSD. His mood and affect were normal. During this visit, the WTU PCM described a conversation wherein the applicant allegedly stated he "knew the system" and merely made statements so that he could return to CONUS. The applicant denies making this statement and asserts his words were "taken out of context." After the 30 May 2013 visit, the WTU PCM updated the applicant's temporary 90-day profile and wrote, "agree with plan to return to unit for REFRAD." 4. The ARBA psychiatrist's review determined the applicant's medical records did not support referring him into the DES because of a behavioral health diagnosis at the time of his separation. Further, his medical records showed, except for his brief psychiatric hospitalization and a temporary 90-day psychiatric profile (S3), he otherwise met medical retention standards. As such, disposition through military medical channels was not warranted. 5. In his rebuttal to the HRC advisory opinion, the applicant noted VA had given him a 40 percent disability rating for an unidentified service-connect injury, acquired during his active service between 7 March and 29 June 2013. The ARBA psychiatrist also found evidence of a disability award by VA, though the JLV gave no details as to the conditions. a. The applicant appears to imply that, because he was granted a service-connect disability by VA, he should have received a disability discharge, and perhaps a comparable disability rating, from the Army. b. The VA and the Army, however, operate under different laws and policies. The award of a VA rating does not establish error or injustice in the Army's disposition of a Soldier's case. c. The VA awards disability ratings to Veterans for service-connected conditions, including those conditions detected after discharge. The intent is to compensate the individual for loss of civilian employability. By contrast, the Army determines whether the Soldier is fit for continued military service, and if found unfit, the Soldier is compensated for the loss of his/her military career. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160003027 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003027 14 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2