ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 February 2019 DOCKET NUMBER: AR20160011214 APPLICANT REQUESTS: physical disability retirement in lieu of honorable discharge due to personality disorder. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Initial Clinical Assessment, dated 23 September 2008 * Department of Veterans Affairs (VA) letter, dated 1 May 2012 * partial VA Rating Decision, dated 12 September 2014 * VA letter, dated 3 June 2018 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. His DD Form 214 shows his reason for discharge was a personality disorder, but in reality he was suffering from post-traumatic stress disorder (PTSD) with a traumatic brain injury (TBI). b. He believes he was misdiagnosed and his PTSD and TBI were ignored by his command in order to have another body to deploy, even though he was in a non- deployable status at the time. He feels he should have been given an opportunity to undergo a Medical Evaluation Board (MEB) and been considered for a medical retirement. He was previously unaware he could request a change to his discharge, thus his request is submitted more than three years after his discharge. 3. After a prior period of service in the U.S. Navy from 26 February 2001 through 22 October 2002 that ended in a general discharge, under honorable conditions due to misconduct, the applicant enlisted in the U.S. Army National Guard (ARNG) on 14 December 2004. He was honorably discharged from the ARNG on 4 July 2006 for immediate reenlistment in another component of the Armed Forces and subsequently enlisted in the Regular Army on 5 July 2006. 4. He held military occupational specialty 13F (Fire Support Specialist) and deployed in support of Operation Iraqi Freedom with service in Iraq from 21 September 2007 through 14 July 2008. 5. His records contain numerous DA Forms 4856 (Developmental Counseling Form), indicating he received counseling on numerous occasions between October 2007 and April 2008, with the following key points of discussion: * need to improve physical fitness to pass Army Physical Fitness Test (APFT) * job knowledge * excessive financial indebtedness over $114,000 * compromised integrity * lateness to work, personal accountability * lack of motivation 6. A DA Form 4856, dated 3 May 2008, states the following: a. On 18 April 2008, he told a noncommissioned officer (NCO), Sergeant G____, he would not conduct physical training to his standards. Not only was this disrespectful to an NCO, but he also showed a lack of motivation. He claimed he thought the NCO was going to make fun of his father, which made him extremely angry. When asked why he thought someone would say something about his father he stated he didn’t know. b. He then asked to speak with the Chaplain, which he was released to do, and when he returned asked to take a break from interactions with Sergeant G____, which was also granted for 3 days. On 24 April 2008, Sergeant G____ counseled him for the events on 18 April 2008, after which the applicant stated he was going to the Combat Stress Team (CST) because he was thinking about killing people. He was released to be seen by the CST. c. The applicant made it abundantly clear he was not interested in receiving help, but wanted someone to remove him from his current work situation. He showed no interest in working with Sergeant G____, Staff Sergeant C_____, Sergeant First Class B____, or the Chaplain. He did not want advice, which only led the counselor to believe his intent was to feign illness for the purpose of avoiding duty and physical training. Toward this end he was willing to make threats on fellow Soldier’s lives to avoid his duties. For these actions he was going to recommend action under the Uniform Code of Military Justice and separation from the Army for malingering. 7. A Report of Mental Status Evaluation, dated 30 April 2008 shows he received a behavioral health assessment at the request of his command, which shows: * his behavior was uncooperative * he had no psychiatric disease or defect that warranted disposition through medical channels * he was diagnosed with malingering and Antisocial Personality Disorder * his current potential for self-harm was none and his potential for harm to others was moderate * he was recommended for follow up appointment with a behavioral health provider and psychiatric medication trazodone * he was considered potentially dangerous and he was to be prevented from having access to weapons and ammunition until cleared by mental health * he was psychiatrically cleared for any administrative action deemed appropriate by his command * he met the psychiatric criteria for administrative separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-13, because of personality disorder * he did not have a severe mental disorder and is not considered mentally disorders; however, he manifested a long-standing disorder of character, behavior and/or adaptability that is of such severity so as to preclude further military service * it was the professional opinion of the evaluator that the applicant would not respond to command efforts at rehabilitation 7. On 14 June 2008, his immediate commander notified him of his intention to initiate action to separate him under the provisions of Army Regulation 635-200, paragraph 5-13, because of his diagnosis of Antisocial Personality Disorder with an honorable characterization of service. He advised him of his rights, among them the right to consult with counsel and submit statements in his behalf. 8. On 14 June 2008, he acknowledged being advised by his consulting counsel of the basis for the contemplated action to separate him for Antisocial Personality Disorder, under the provisions of Army Regulation 635-200, paragraph 5-13. He requested consideration of his case by an administrative separation board if his service were to be characterized as less than honorable. He requested consulting counsel and representation by military counsel and did not submit statements in his own behalf. 9. On 2 July 2008, the approval authority directed the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 5-13, for Antisocial Personality Disorder and directed his service to be characterized as honorable. 10. His DD Form 214 shows he was discharged accordingly on 22 July 2008, after 2 years and 18 days of net active service this period for personality disorder. His service was characterized as honorable. 11. In the adjudication of this case, and advisory opinion was obtained from the Army Review Boards Agency (ARBA) clinical psychologist on 3 January 2019, which states: a. Military personnel files confirm the applicant was separated under Army Regulation 635-200, paragraph 5-13 with a diagnosis of Antisocial Personality Disorder. Counseling statements from October 2007 through April 2008 addressed a lack of motivation to learn military occupational specialty skills, disinterest in ensuring he was physically up to standards related to weight and APFT scores, financial mismanagement resulting in creditors contacting Command while deployed, integrity concerns due to lying, difficulties with taking responsibility, poor military bearing related to disrespect toward superiors and not using rank when addressing others, and reporting late to work. A counseling statement from April 2008 notes the applicant informed his command he needed to go see the Combat Stress Team because he was thinking of killing people. He then stated he wasn’t interested in receiving help and rather wanted to be removed from work. His command released him to go, but documented concern that he was willing to threaten other Soldiers’ lives to avoid duties. b. The Department of Defense electronic medical record (AHLTA) documents a command consultation dated with the Combat Stress Team after the applicant felt an NCO had made fun of his deceased father resulting in homicidal threats. Although the applicant told his command there was no basis for this suspicion and he handled the situation poorly, he proceeded with the threats. His performance was described as unmotivated and completing the bare minimum which resulted in peers being promoted while he was not. His command noted he was in a low stress environment, the tactical operations center, but wanted a transfer to a preferred post as a Morale Welfare and Recreation guard. c. On 28 April 2008, he was referred to the Combat Stress Restoration (CSR) program with an initial diagnosis of Adjustment Disorder with Disturbance of Emotions and Conduct. While in the program, he stated his anger started after the loss of his father and gradually increased. He reported seeing a counselor previously, but would not disclose any details. He reported being suspended from school for fighting on numerous occasions, being in trouble with the law as an adolescent due to breaking windows and stealing money out of cars, and being “kicked out of the Navy after two years for misconduct” related to disrespect toward an NCO, reporting late, fighting, and driving under the influence (DUI). During his time in the CSR program providers indicated he was bitter, manipulative, ignored program rules, minimally participatory, and overall noncompliant. He had conflict with other CSR Soldiers, telling one to “Shut the fu__ up” as the other Soldier was playing dominos while he was making a call. Providers noted the applicant continued to make threats if returned to his unit to include “I will not go back to my unit…There is no telling what I’ll do (to) them…,” “If I go back to my unit, I’m going to kill some people. The first sergeant from B Troop was the one talking crap about me and I was making a plan to kill him. I thought about killing Sergeant G____ once or twice, but I just want to hurt him bad…If I go back, I’ll hurt someone or worse. If it gets to that point I might kill them,” and “They better take me serious.” d. On 30 April 2008, he underwent a Command Directed Mental Health Evaluation. He reported a desire to be discharged, but expressed concerns about finances if separated due to a recent bankruptcy. Psychological testing was administered, but was invalid as he presented himself as more impaired than he likely was. After being observed and assessed for a minimum of 48 hours, the discharge diagnosis was Antisocial Personality Disorder. The applicant met the required criteria for this diagnosis to include exhibiting and reporting seven of the seven criteria, although an individual only needs three of the seven, 1) evidence of a conduct disorder before age 15 2) a pattern of disregard for and violation of the rights of others to include failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest, 3) deceitfulness as indicated by repeated lying or using people for personal profit or pleasure, 4) impulsivity or failure to plan ahead, irritability and aggressiveness as indicated by repeated physical fights or assaults, 5) reckless disregard for safety of self and others, 6) consistent irresponsibility as indicated by repeated failures to sustain consistent work behavior or honor financial obligations, and 7) a lack of remorse as indicated by being indifferent to or rationalizing having hurt or mistreated another, and schizophrenia or a manic episode were ruled out. Given the diagnosis, a discharge under Army Regulation 635-200, paragraph 5-13 was recommended. e. The applicant submitted an “Initial Clinical Assessment” behavioral health note, dated 23 September 2008, as evidence he did not have a personality disorder. The paperwork does not identify the agency or clinician’s credentials. The applicant told the clinician the purpose of the visit was “to be assessed so he can return to active duty.” The information the applicant provided is incongruent with previous records and subsequent VA notes, e.g. he denied any conduct issues in school to include expulsion or fighting, conduct issues as a child and adolescent to include breaking windows and stealing, history of homicidal threats, history of behavioral health treatment and related data, and legal issues to include his DUI. During this appointment the applicant was asked about any history of traumatic events he indicated “some” from being “overseas.” He indicated “it hit me hard for a few weeks and then I talked to the Chaplin and I got it resolved.” He denied flashbacks, nightmares, or intrusive memories. Based solely on the information provided by the applicant, with no collateral from medical reports or objective testing, the clinician wrote “He does not meet the diagnostic features of antisocial personality D/O.” Given the basis of this opinion was purely self-report and contradictory, this note is not evidence the applicant did not have a personality disorder. f. A review of VA medical records indicate the applicant has a service connection rating for PTSD that has increased as follows: 50% in 2010, 70% in 2011, and 100% in 2013. The Compensation and Pension (C&P) evaluations from 2010 and 2011 were unavailable for review. The C&P exam from 2013 was based on self-reported symptoms and impairment with no objective testing or data. Although the applicant expressed a desire for PTSD treatment and accepted referrals, VA record indicate he has been noncompliant by either not responding to scheduling calls or repetitive no shows and cancellations. g. This resulted in sporadic and limited behavioral health contact often occurring in conjunction with financial need, disability evaluations, and required paperwork for these issues. For instance, he scheduled an appointment in January 2015 seeking paperwork stating he was permanently disabled for Social Security Disability Insurance (SSDI). He reported SSDI denied his full disability claim noting he could work in certain settings. He was adamant he couldn’t work in any capacity and wanted the provider to complete permanent disability paperwork supporting this. The provider explained this would be inappropriate at a first meeting and the applicant would need to participate in treatment, exhausting therapy efforts before being able to say he is unemployable. He did not return noting disinterest in treatment, focused on being unemployable for disability. The treatment appointments he did attend were often medication related. Providers still noted noncompliance and erratic attendance with significant gaps between appointments. VA records revealed the applicant’s separation from the Navy was related to being repeatedly late to work, drinking, fighting, and a driving while intoxicated (DWI). After discharge from the Navy, he became a paid caregiver for his ill father and served in the ARNG. When his mother could no longer pay him to be a caregiver, he enlisted in the Army. He noted anger issues starting with his father’s death and perception of being ostracized by his unit upon return from bereavement leave rather than trauma. h. Post-service, he reported an inability to keep a job due to being “too hard” on employees, fighting with coworkers, making racist statements, and insubordination. He reinforced the conduct issues in his younger years reporting expulsion in 6th grade, throwing rocks, and breaking windows, and joy riding. He reported attending college and being scouted by pro-athletic teams, but due to partying, he was academically unable to continue, leading to his initial enlistment in the U.S. Navy. It is unclear if there are additional records as his wife alluded to treatment at other VA centers, but these are not in JLV as would be expected. i. The applicant contacted behavioral health in June 2018 requesting medication. During that appointment, he noted compliance was “hit or miss” and was not open to changing the regimen seeking only refills. In July 2018, he had two behavioral health contacts, the first requesting a letter for college indicating he could engage in gainful activities. He chose not to pursue this, fearing his wife would be disenrolled from the Caregiver program if behavioral health wrote a letter indicating he was functional. The second contact was to request a letter for his apartment complex so he could keep a dog he wanted to train as a service animal. The provider noted this could not be given as the VA does not recognize service dogs for PTSD and does not provide letters regarding emotional support animals. In September 2018, during a Caregiver program contact, his wife reported her husband was happier, had made some friends, was going to their son’s sporting events, joined a fantasy football league, and overall was doing well. During a primary care appointment in October 2018, the applicant denied depression, worry, or stressors impacting him. In contrast, he rated himself in the moderate range for trauma symptoms. The provider commented on his pleasant mood, good memory, and overall normal mental status noting the discrepant self-report screener and inability for this to be used for any diagnostic purposes. j. The applicant’s wife was granted Caregiver benefits in 2011, but providers noted noncompliance with conditions, concern for over-reporting impairment, and frequent conversations about eligibility and difficulty justifying her status without participation of either her husband or her. In an October 2018 reassessment, his wife was disenrolled from the Caregiver program as the family no longer met eligibility criteria. k. Over time, providers have noted concern about the authenticity of the applicant’s PTSD diagnosis and true level of impairment given the applicant and his wife’s tendency to report information that is drastically different from what is observed, consistent focus on benefits, the applicant reporting no interest in working regardless of disability evaluators’ determination, and decision to not attend school if it impacted the Caregiver stipend. When the discrepancy in self-report and observed functioning has been pointed out and psychological assessment or inpatient care considered for clarification, the applicant and his wife have responded by indicating the applicant isn’t as impaired as initially thought, his TBI is not service related so he doesn’t qualify for a dual assessment program, and not followed up with diagnostic clarification referrals. In January 2017, he was referred for a PTSD reassessment due to diagnostic and functional discrepancies with the provider advising the evaluator to “not rely solely on self-report from he or his wife.” The applicant did not follow through until another provider in May 2017 again noted concern for discrepancies. In July 2017, he completed a neuropsychological evaluation. The report noted his cognitive profile was “within expectation not suggestive of notable cognitive decline” and he had "relatively mild psychiatric symptoms” suggesting “he does not require a full time caregiver." l. Based on a thorough review of available records, there is no evidence the applicant met criteria for PTSD or TBI at his time in service. Although the VA has diagnosed and provided a service-connected rating for PTSD, there is consistent documentation noting concerns about the authenticity of this diagnosis. Rather, the diagnosis of Antisocial Personality Disorder is supported and, as such, a discharge under the provisions of Army Regulation 635-200, paragraph 5-13, for a personality disorder was appropriate. In summary, there is no evidence the applicant had a boardable or mitigating behavioral health condition and no change to the reason for discharge is recommended. 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-13 states a service member may be separated for personality disorder not amounting to disability that interferes with assignment to or performance of duty when so diagnosed by a medical authority. A Soldier being separated under this section will be awarded a character of service of honorable, under honorable conditions, or an entry-level separation. 13. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. 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. 14. Army Regulation 635-40 establishes the Army Disability Evaluation System 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 retirement or separation for disability. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 15. 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 of less than 30 percent. 16. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. 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. These two government agencies operate under different policies. 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board agreed there is no record of a boardable medical condition during his period of service requiring consideration by the OTSG. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :x :x :x DENY APPLICATION 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-13 states a service member may be separated for personality disorder not amounting to disability that interferes with assignment to or performance of duty when so diagnosed by a medical authority. A Soldier being separated under this section will be awarded a character of service of honorable, under honorable conditions, or an entry-level separation. 3. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and 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 either are 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 retired pay and have access to all other benefits afforded to military retirees. c. 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. 4. Army Regulation 635-40 establishes the Army Disability Evaluation System 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 retirement or separation for disability. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 5. 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 of less than 30 percent. 6. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. 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. These two government agencies operate under different policies. 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. ABCMR Record of Proceedings (cont) AR20160011214 11 1