IN THE CASE OF: BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20160003624 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: 7 November 2017 DOCKET NUMBER: AR20160003624 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 affording her processing through the Physical Disability Evaluation System to determine if she should have been discharged or retired by reason of physical disability. Should a determination be made that the applicant should have been separated under the Physical Disability Evaluation System, these proceedings serve as the authority to void her administrative separation and to issue her the appropriate separation retroactive to her 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 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 showing she was medically discharged without the benefit of the Physical Disability Evaluation System process. ______________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: 7 November 2017 DOCKET NUMBER: AR20160003624 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: a. correction of her military records to show she was medically discharged or b. consideration by a medical evaluation board (MEB). 2. The applicant states: a. She should have been considered by an MEB for what was eventually described as personality/adjustment disorder. One month after her discharge, the Department of Veterans Affairs (VA) diagnosed her condition as a verifiable disability (anxiety/depression) and assigned a disability rating of 30 percent. Her current disability rating for the condition is 50 percent. b. There was a high-visibility media scandal exposed at Madigan Army Hospital wherein they chose to characterize a Soldier's condition as adjustment or personality disorder to intentionally prohibit paying disability compensation benefits to their patients. c. While in the inpatient psychiatric rehabilitation program at the Tuscaloosa VA, a therapist told her she should have been medically discharged for post-traumatic stress disorder (PTSD) that was likely misdiagnosed/recharacterized as adjustment disorder. 3. The applicant provides: * VA Rating Decisions, dated 7 September 2006 and 11 July 2008 * VA medical records * DA Form 4700 (Medical Record), dated 8 April 2005 * memorandum for record from Headquarters, U.S. Army Medical Department Activity, Fort Hood, TX, dated 11 April 2005 * DA Form 3349 (Physical Profile), dated 25 April 2005 * DA Form 3822-R (Report of Mental Status Evaluation), dated 28 December 2005 * memorandum from Headquarters, U.S. Army Garrison-Hawaii, Schofield Barracks, HI, dated 5 January 2006 * DA Form 4856 (Developmental Counseling Form), dated 7 February 2006 * documentation on PTSD * scandal awareness articles * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 8 August 2002 for a period of 4 years. 3. She served in Iraq from 2 February 2004 to 7 April 2005. 4. A DA Form 4700 (Medical Record – Supplemental Medical Data), dated 8 April 2005, shows she was admitted to the psychiatric department on 29 March 2005. She was diagnosed with severe major depressive disorder without psychotic features. She was discharged from the hospital on 8 April 2005. 5. A memorandum for record from a staff psychiatrist at Headquarters, U.S. Army Medical Department Activity, Fort Hood, TX, dated 11 April 2005, states: a. The applicant was evaluated in the Outpatient Psychiatry Clinic and diagnosed with adjustment disorder with depressed mood. This condition is not likely to improve in the near future (within 60 days). b. In accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-36, a diagnosis of adjustment disorder does not require consideration for disability rating by a physical evaluation board (PEB). She does not have a serious psychiatric disorder or mental defect which would render her nondeployable or mission non-capable. Soldiers with this condition, however, are likely to perform suboptimally in their military duties, require inordinate supervision, incur disciplinary action, and remain a command liability. c. He recommended her administrative separation for adjustment disorder with depressed mood under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-17. 6. A DA Form 3349, dated 25 April 2005, shows she was issued a temporary profile rating of 111112 for adjustment disorder. 7. On 22 August 2005, she was honorably discharged for immediate reenlistment. She reenlisted on 23 August 2005 for a period of 4 years. 8. On 28 December 2005, she underwent a mental status evaluation and was diagnosed with depression and panic disorder. The psychiatrist found her mentally responsible and determined there was no evidence of an emotional or mental condition of sufficient severity to warrant disposition through medical channels (she did not meet the criteria for an MEB). 9. A memorandum from the Community Chaplain, Headquarters, U.S. Army Garrison-Hawaii, Schofield Barracks, HI, dated 5 January 2006, states: a. The applicant has been diagnosed by two independent providers with depression and panic disorder. She was later evaluated by a psychiatrist who agreed with the earlier diagnosis and further recommended her separation under the provisions of Army Regulation 635-200, paragraph 5-17. b. She returned early from a deployment to Iraq as the result of this condition. Months later, she was hospitalized for suicidal ideations and depression. She is currently being treated for the same condition. c. She is not able to adapt to the military and her condition worsens every day she remains in the Army. After interviewing the applicant, he strongly agreed with her request for discharge. 10. Her records are void of the specific facts and circumstances surrounding her discharge action. However, her DD Form 214 shows she was honorably discharged on 13 April 2006 by reason of a condition, not a disability, under the provisions of Army Regulation 635-200, paragraph 5-17. She completed 3 years, 8 months, and 6 days of net active service during this period. 11. There is no evidence showing she was processed through the Army Physical Disability Evaluation System during her active military service. 12. She provided a VA Rating Decision, dated 7 September 2006, showing she was granted service connection for the following conditions: * tinea capitus (superficial fungal infection of the skin of the scalp, eyebrows, and eyelashes) with scarring alopecia (hair loss) – 0 percent * burn scar to left arm – 0 percent * pes planus (claimed as flat feet) – 0 percent * arthritis, toes of both feet – 10 percent * left knee strain – 0 percent * lumbar strain – 10 percent * major depression (also claimed as anxiety) – 10 percent effective 29 April 2006 13. She provided the first page of a VA Rating Decision, dated 11 July 2008, showing she was granted service connection for the following conditions: * PTSD and major depression – 50 percent * lumbar strain – 10 percent * arthritis, toes of both feet – 10 percent 14. An advisory opinion was rendered by the Chief, Behavioral Health Division, Department of the Army Office of the Surgeon General, dated 26 September 2016, wherein he stated: a. In December 2004 while in theater, the applicant was diagnosed with adjustment disorder with anxiety and depressed mood and was medically evacuated following suicidal ideation with a plan to shoot herself. In April 2005, she was diagnosed with adjustment disorder with depressed mood and cleared for administrative separation. She did not present to behavioral health until 23 December 2005 when she was diagnosed with recurrent major depression and seen for six sessions by a clinical social worker. On 28 December 2005, she was again cleared for administrative separation with diagnoses of depression and panic disorder. b. In a rating decision, dated 7 September 2006, the VA granted her service connection for major depression (also claimed as anxiety) with a disability rating of 10 percent effective 29 April 2006. On 11 July 2008, service connection for PTSD and major depression was granted effective 2 March 2007 with an evaluation of 50 percent. c. There is no indication in her service records that she did not meet medical retention standards because of a behavioral health condition. In fact, the VA medical record she submitted focuses primarily on physical issues and makes minimal reference to behavioral health treatment. Given that she was diagnosed with major depression for 5 months prior to her separation, it is clear that she should have been referred for an MEB to assess whether she met medical retention standards. 15. A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal. She did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Chapter 5 provides for separation for the convenience of the government. Paragraph 5-17 (Other Designated Physical or Mental Conditions) provides for discharge on the basis of other designated physical or mental conditions not amounting to disability under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, and Separation) and excluding conditions appropriate for separation processing under paragraph 5-11 (Separation of Personnel Who Did Not Meet Procurement Medical Fitness Standards) or 5-13 (Separation Because of Personality Disorder) that potentially interfere with assignment to or performance of duty. 2. Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability. This regulation provides that the servicing medical treatment facility (MTF) will provide a thorough and prompt evaluation when a Soldier's condition becomes questionable in respect to physical ability to perform duty. Unit commanders will ensure that any physical defects impacting a Soldier's performance of duty are reflected in the Soldier's evaluation report and refer the Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating. The MTF commander having primary medical care responsibility will conduct an examination of the Soldier referred for evaluation. If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB. The MEB will recommend referral to a PEB of those Soldiers who do not meet medical retention standards. 3. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. DISCUSSION: 1. The evidence of record shows: a. In December 2004 while serving in Iraq, the applicant was diagnosed with adjustment disorder with anxiety and depressed mood and medically evacuated following suicidal ideation with a plan to shoot herself. b. She was diagnosed with an adjustment disorder with depressed mood in April 2005 and cleared for administrative separation. c. She was diagnosed with major depression on 23 December 2005. d. On 13 April 2006, she was discharged on the basis of other designated physical or mental conditions not amounting to disability under the provisions of Army Regulation 635-200, paragraph 5-17. 2. She contends she should have been considered by an MEB for a personality/ adjustment disorder. 3. There is no evidence she was processed through the Physical Disability Evaluation System. 4. In his medical advisory opinion, the Chief, Behavioral Health Division, Department of the Army Office of the Surgeon General, states she should have been referred for an MEB to assess whether she met medical retention standards because she was diagnosed with major depression for 5 months prior to her separation. 5. She also contends she should have been medically discharged for PTSD. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003624 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003624 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2