BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160003443 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: 8 August 2017 DOCKET NUMBER: AR20160003443 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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: a. Directing the Office of The Surgeon General to review the available records to determine if the applicant should have been processed through the Physical Disability Evaluation System (PDES) prior to his discharge. If it is determined that he should have been referred to the PDES prior to his discharge, these proceedings serve as the authority to afford him that process. b. Should a determination be made that the applicant should have been discharged or retired due to disability, these proceedings will serve as the authority to void his administrative separation and issue the appropriate separation retroactive to the appropriate date, with entitlement to all pay and allowances that may be due as a result. 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 changing his narrative reason for separation without benefit of the review described above. __________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: 8 August 2017 DOCKET NUMBER: AR20160003443 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 honorably separated due to disability. 2. He states he was experiencing a difficult time while in the military and he asked for help. However, instead of receiving help, he was discharged for a personality disorder. He adds he filed for disability with the Department of Veterans Affairs (VA) and received a 30 percent disability rating for personality disorder which was later diagnosed as post-traumatic stress disorder (PTSD). He now has a 50 percent disability rating for PTSD. 3. He provides: * Medical documents consisting of Progress Notes, Consultation Sheets, and Medications * Memorandum, subject: Case Review Committee (CRC) Case Determination, dated 4 and 17 October 2006 * Commander Request for Mental Evaluation, dated 20 November 2006 with the applicant's Report of Mental Status Evaluation, dated 28 November and 19 December 2006 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. With prior enlisted service in the Army National Guard, on 28 October 2003, the applicant enlisted in the Regular Army (RA). 3. His Enlisted Record Brief shows he served in Iraq from 5 December 2003 to 16 December 2004. 4. The evidence shows between 4 May 2006 and 8 January 2007, he received six DA Forms 4856 (Developmental Counseling Form) as follows: a. On 4 May 2006, the commander counseled him for alleged aggravated sexual assault on his wife and the conditions of liberty and pretrial restraints in accordance with the Judge Magistrate's order. In accordance with the court order, the commander set certain conditions which required the applicant to live in the barracks and have no contact with his wife. The applicant signed the counseling statement indicating he agreed with the information contained in the statement. b. On 12 and 22 May 2006, the commander counseled him for alleged aggravated sexual assault on his wife. He reiterated the terms of his pretrial restraints as contained in the above counseling statement. The applicant signed the counseling statements indicating he agreed with the information contained in the statements. c. On 8 January 2007, the applicant's noncommissioned officer in charge (NCOIC) counseled him concerning being considered for separation in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-13, due to a personality disorder. The applicant signed the counseling statement on 10 January 2007, indicating he agreed with the information contained in the statement. d. On 1 March 2007, the applicant's NCOIC conducted a follow-up counseling session to his 10 January 2007 counseling. He stated the applicant was recommended for separation from the Army due to significant psychological symptoms that interfered with his ability to fit well within the Army system. The NCOIC indicated the applicant had problems that could be remediated with medication, but were not amenable to therapy. The evaluating healthcare professionals determined that under stress, the applicant may engage in unpredictable or aggressive behavior and as such, he may not be able to deploy successfully. The applicant signed the counseling statement indicating he agreed with the information contained in the statement. e. On 14 March 2007, the commander counseled the applicant concerning his wife filing a police report charging him with domestic violence. He was accused of being both physically and emotionally abusive to her. He was ordered to have no direct contact with her either in person or via telephone until further notice. The applicant signed the counseling statement indicating he agreed with the information contained in the statement. 5. In a memorandum, subject: CRC Case Determination, dated 4 October 2006, the Chief, Department of Social Work, Darnall Army Medical Center, Fort Hood, TX, stated the applicant was involved in an alleged spouse abuse incident. The CRC completed their evaluation and substantiated in which the applicant was the offender and an incident with the applicant as the victim. The agency recommended the applicant be command-directed to comply with the treatment plan. 6. A Consultation Sheet, from the Fort Hood Resilience and Restoration (R and R) Center, shows on 16 October 2006, a clinical psychologist requested the applicant be evaluated for appropriateness of medications. The reason for the request was listed as depressed mood with symptoms of feeling sad all day every other day. He had low self-esteem, decreased appetite, insomnia, excessive fatigue, concentration problems, feeling of worthlessness, guilt, helplessness, hopelessness, and stress due to family, marital, and occupational problems. He also complained of anger and irritability. The applicant had experienced these symptoms for the past 6 to 14 months. The psychologist assessed a provisional diagnosis of adjustment disorder with depressed mood. 7. In a memorandum, subject: CRC Case Determination, dated 17 October 2006, the Chief, Department of Social Work, stated the applicant was involved in an alleged child abuse and neglect incident. The CRC completed an evaluation and determined it to be unsubstantiated. 8. On 20 November 2006, the commander requested that the applicant have a mental status evaluation. She stated the applicant was scheduled to deploy in January 2007. However, after speaking with the applicant on 15 November 2006 and noticing his lack of military bearing and noticeable anger control issues first hand, she spoke with his counselor at the Department of Social Work the following day. Due to the domestic violence incidents between him and his wife prior to the applicant's arrival in the unit, the counselor was concerned that he was not mentally stable to deploy in January 2007. The applicant's chain of command were concerned for the Soldier's mental status due to his declining performance at work, noticeable anger control issues, his history of domestic violence, and his own admission of the need for more treatment to prevent a potential "snap" in the future. 9. A Report of Mental Status Evaluation, dated 28 November 2006, shows the applicant underwent a mental evaluation that listed his mood or affect as depressed. He was determined to have the mental capacity to understand and participate in the proceedings, was mentally responsible, and met the retention requirements of AR 40-501 (Standards of Medical Fitness) (i.e., he did not have an unfitting diagnosis that would require a Medical Evaluation Board). The clinical psychologist further stated: The Soldier identified above was evaluated by the Resilience and Restoration Center, Carl R. Darnall Army Medical Center. The evaluation revealed that this Soldier is experiencing symptoms of depression, probable long-standing problems with anger, marital problems, etc. He has been on medication for depression for about 2 weeks and just started medication for sleep. It is recommended that he be given 3 more weeks to take medication as prescribed to see if this improves his symptoms and his ability to function. He can be reassessed in 3 weeks to gauge his progress on medication. There is no evidence of current suicidal or homicidal ideation or altered thought processes. 10. A Report of Mental Status Evaluation, dated 19 December 2006, shows the applicant underwent a mental evaluation that listed his mood or affect as depressed. He was determined to be mentally responsible and to meet the retention requirements of AR 40-501. The clinical psychologist further stated: The Soldier identified above was evaluated by the Resilience and Restoration Center, Carl R. Darnall Army Medical Center. The evaluation revealed that this Soldier is experiencing significant psychological symptoms that interfere with his ability to fit well within the Army system. These include long-standing personality issues including anger problems, aggressiveness, irritability, etc. These personality traits cannot be remediated by medication and are not amenable to therapy. He is being treated for his depression which is improving with medication, etc. His condition does not amount to a disability or meet criteria for review by a Medical Evaluation Board. The Soldier denies suicidal and homicidal thoughts. Under stress this Soldier may engage in unpredictable or aggressive behavior. If he was to be deployed at this time it is very likely that he would require evacuation from theater not long after his arrival. I recommend this Soldier be separated from service [in accordance with] AR 635-200, [paragraph] 5-13. Service member is psychologically cleared for any administrative action deemed appropriate by the command. 11. On 18 May 2007, the applicant's immediate commander notified him of her intent to initiate action to discharge him from the Army under the provisions of AR 635-200, paragraph 5-13, due to personality disorder. The commander stated her recommendation was based on the medical recommendation to administratively separate him from the Army. 12. On 21 May 2007, the applicant consulted with military counsel. After being advised of the basis for the contemplated separation action, its effects, and the rights available to him, he waived consideration of his case by an administrative separation board and elected not to submit a statement in his behalf. 13. On 13 June 2007, the separation authority approved the proposed separation action against the applicant in accordance with paragraph 5-13 of AR 635-200 and directed he receive an Honorable Discharge Certificate. 14. On 26 June 2007, he was honorably discharged. The DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 7 months, and 29 days of active service this period. This form further shows the separation authority was AR 635-200, paragraph 5-13, and the narrative reason for separation was personality disorder. 15. The applicant provided numerous Progress Notes and Consult Sheets from the Central Texas Department of Veterans Affairs (VA) Health Care System. These documents indicate the applicant has been suffering with depression and anger since 2007. He currently has a service-connected disability rating of 50 percent for PTSD. 16. On 21 November 2016, the ABCMR obtained an advisory opinion from an Army Review Boards Agency (ARBA) clinical psychologist, who states there is evidence the applicant met the criteria for PTSD during his military service. Additionally, this psychologist stated: a. The applicant was in the Army from 28 October 2003 to 26 June 2007. He served in Iraq from December 2003 to December 2004. Upon his return, he had escalating difficulties that included depression, anxiety, drinking, marital problems, legal problems, and family assistance program involvement as a result of non­violent domestic quarrels with his wife that led to police involvement. In 2006, he was diagnosed in an Army Behavioral Health Clinic as having a personality disorder. Diagnostic evidence cited focused on psychological testing. No specific personality disorder was cited. Nevertheless, he received an honorable discharge from the Army under paragraph 5-13, AR 635-200, and personality disorder is cited as the narrative reason for discharge. b. He did not obtain a diagnosis of PTSD until he began going to VA clinic. He has received a 50 percent service connected disability rating for PTSD. The VA has apparently stopped using the personality disorder diagnosis in favor of the PTSD diagnosis. The clinical presentation of PTSD and a personality disorder is in many respects similar, making it sometimes difficult to distinguish one from the other; however, in light of the Secretary's liberal guidance regarding PTSD, there is no reason to contest the claim that the applicant had or has service connected PTSD. c. Further, the behaviors that led to his discharge that involved drinking, irritability, marital problems, decreasing reliability, unstable mood, and the like are all reasonably attributable to PTSD, if this were a mitigation case. There is insufficient evidence to determine that he does not also have a personality disorder since there was no evidence available in his medical records. His VA records are consistent with both PTSD and a personality disorder; however, the VA decision to reject a personality disorder diagnosis is defensible. d. The applicant's available records did not, at the time of his discharge, reasonably support him having had a boardable medical condition. He did not meet retention standards in AR 40-501 and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation). His subsequent psychiatric history does warrant acting on a presumption that he was beginning to show symptoms of PTSD in the aftermath of his Iraq deployment. The psychologist who diagnosed a personality disorder did so on the basis of the evidence that was available to her. Subsequent history is that his treating clinicians at the VA believe PTSD is the better explanation of his symptoms than a personality disorder. 17. The applicant was provided a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or provide additional evidence. He did not respond. REFERENCES: 1. AR 635-200 provides for the separation of enlisted personnel from active duty. Paragraph 5-13 provides for the separation of a Soldier for personality disorder (not amounting to disability that interferes with assignment or with performance of duty. 2. AR 635-40 establishes the Army Physical Disability Evaluation System (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 office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting separation for disability. a. The disability system assessment process involves two distinct stages: the medical evaluation board and the physical evaluation board (Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. b. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 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. The VA Schedule of Rating Disabilities is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 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. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities, which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have 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. As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on 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. The applicant enlisted in the RA on 28 October 2003. He served in Iraq from 5 December 2003 to 16 December 2004. He was scheduled to deploy in January 2007, but after two mental health evaluations were conducted in November and December 2006, a clinical psychologist determined he was not sufficiently mentally stable to deploy. 2. The mental evaluation revealed that he was experiencing significant psychological symptoms that interfered with his ability to fit well within the Army system. His history included long-standing personality issues including anger problems, aggressiveness, and irritability. He was being treated for depression, which was improving with medication. The psychologist felt that if the applicant was under stress, he might engage in unpredictable or aggressive behavior. He was psychologically cleared for any administrative action deemed appropriate by the command. 3. His Army medical records are void of a PTSD diagnosis and there is no indication that he experienced any specific traumatic event(s) or exposure in Iraq. However, the VA awarded him a 50 percent service-connected disability rating for PTSD.. 4. Additionally, a clinical psychologist provided an advisory opinion stating the behaviors that led to applicant's discharge involving drinking, irritability, marital problems, decreasing reliability, unstable mood, and the like are all reasonably attributable to PTSD. The advising psychologist stated his subsequent psychiatric history does warrant acting on a presumption that he was beginning to show symptoms of PTSD in the aftermath of his Iraq deployment. 5. The conclusion reached in the advisory opinion would support a recommendation to refer the applicant's records to the Office of The Surgeon General for review to determine if he had any conditions that did not meet retention standards and warranted referring him to PDES. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003443 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003443 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2