ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 May 2019 DOCKET NUMBER: AR20160011676 APPLICANT REQUESTS: Reconsideration of his previous request for correction of his records to show he was retired due to physical disability, based on a diagnosis of post- traumatic stress disorder (PTSD). 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) for the period ending 2 October 2007 * Enlisted Record Brief * Department of Veterans Affairs (VA) rating decision 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 (ABCMR) 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120011582 on 17 January 2013. 3. The applicant states: a. He was diagnosed with PTSD and he still receives treatment from the VA after nine years of being out of the service. He received separation pay which was deducted from his VA benefits. b. He was separated under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 13 (Separation because of personality disorder), which states the following "a Soldier with less than 24 months of active duty service, as of the date separation proceedings are initiated, may be separated for personality disorder (not amounting to disability) that interferes with assignment or with performance of duty." He was discharged after six years of active duty service with two deployments and one tour. He was diagnosed with PTSD and received 30 percent for his PTSD. Medical retirement is reached when you have a permanent disability rating of 30 percent or more. For several years, he and his family have struggled with his disability and he feels that he has very little to show for it. 4. Following service in the U.S. Army Reserve, which included a deployment to Kosovo from 23 February 2000 to 27 February 2001, the applicant enlisted in the Regular Army on 30 April 2002. 5. Information obtain from the Defense Finance and Accounting Services confirms the applicant received hostile fire/imminent danger pay during the period 1 November 2002 to 31 May 2003 for service in Kuwait. 6. He reenlisted on 26 May 2004 and on 22 August 2005. 7. A DA Form 4856 (Developmental Counseling Form) shows that on 23 April 2007, the applicant was counseled based on a medical evaluation which recommended him for separation due to behavioral health issues. The summary of counseling shows the following: [Applicant's name] it has been made known that you have been seeking help from mental health in an attempt to continue your military career. However on 11 April 2007, you not only had to attend an emergency session at behavioral health but your condition had worsened to the point that you had to be evacuated to Samaritan Hospital for 12 days because you felt you were a danger to other Soldiers. While removing yourself from the situation before doing something you'd regret was commendable, it is the opinion of the staff at Samaritan hospital, Ft Drum behavioral health and [Major B] that you have a personality disorder which makes you unfit for military duty. Due to this recommendation, the chain of command has decided to begin to process you for administrative separation from the Army under the provisions of AR 635-200, Chapter 5-13. We believe although you have had a good military record in the past, right now the Army environment is not the right one for you. 8. On 3 May 2007, the applicant underwent a command-directed mental status evaluation. The DA Form 3822-R (Report of Mental Status Evaluation) shows he was diagnosed with occupational problem and personality disorder, not otherwise specified (NOS). The DA Form 3822-R also shows the following findings, impression, and recommendations: Findings: Based on extended evaluation, including discussion with [Dr. D] (Ft. Drum psychologist), command consultation, diagnostic evaluation and review of previous psychiatric records including notes from Great Lakes Naval Clinic and discharge summary from Samaritan Hospital, the primary diagnostic impression is personality disorder, NOS. This diagnosis represents a personality disorder within the meaning of the AR 40-501 [Standards of Medical Fitness], AR 635-200, and DSM IV-TR [Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision]. This disorder results in interpersonal and occupational problems that interfere with the SM's [service member's] ability to perform duty. This diagnosis was established by longitudinal evidence of cyclical maladaptive patterns of behavior that include unstable relationships and self-image, impulsivity, affective instability, and recurrent suicidal ideation. Impression: This condition and the problems presented by this individual are not, in the opinion of the examiner, amenable to hospitalization, short-term treatment, rehabilitative transfer, training, or reclassification to another type of duty within the military. It is unlikely that efforts to rehabilitate or develop this individual into a satisfactory member of the military will be successful. Separation under Chapter 5- 13 is in the best interest of both the SM and the Army. Recommendations: A. Recommend administrative separation IAW [in accordance with] AR 635-200, Chapter 5-13 for Personality Disorder, NOS. B. Recommend that SM does not have access to weapons or ammunition. C. Recommend that SM continues treatment services from this clinic until out of the Army and then with the VA. D. This SM is fit for any administrative or judicial action deemed appropriate by command. 9. On 8 August 2007, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of paragraph 5-13, AR 635- 200, because of personality disorder. The commander stated the reasons for the proposed separation action were the applicant diagnosis of personality disorder and that according to the medical examiner, it is unlikely that efforts to rehabilitate or develop him into a satisfactory member of the military would be successful. He was not allowed to have access to weapons or ammunition. The medical examiner also recommended his discharge from the Army IAW AR 35-200, Chapter 5-13. 10. On 8 August 2007, the applicant acknowledged the notice of proposed separation action. He elected not to submit a statement in his own behalf and conditionally waived his right to appear before an administrative board if the separation authority separated him with a character of service of honorable. 11. On an unspecified date, the separation authority approved the separation action under the provisions of AR 635-200, paragraph 5-13, with an honorable characterization of service. 12. The applicant's DD Form 214 shows he was honorably discharged on 2 October 2007, under the authority of AR 635-200, paragraph 5-13, by reason of personality disorder. 13. The applicant's last Noncommissioned Officer Evaluation Report on record, with a through date of 1 September 2007, shows he passed the Army Physical Fitness Test on 20 June 2007. 14. On 20 December 2016, the Army Review Boards Agency (ARBA) psychiatrist provided a medical advisory opinion. The advisory found that based on the information currently available, it is the medical opinion of the ARBA's psychiatrist that the applicant's symptoms and behaviors are much better accounted for by the diagnosis of PTSD than by the diagnosis of personality disorder. PTSD is associated with anger issues and can be associated with the development of homicidal ideation. Review of the extensive behavioral health notes in the applicant's medical record indicates he received no diagnosis of personality disorder until the May 2007 appointment. Prior to this time, the bulk of his behavioral health notes indicate the diagnosis of PTSD. The ARBA's psychiatrist also stated that a review of the applicant's available service treatment records indicates he did not suffer from a medically unfitting condition and met medical retention standards while on active duty. Accordingly, a referral of his record for consideration of medical discharge/retirement is not warranted. A copy of the complete medical advisory was provided to the Board for their review and consideration. 15. The applicant was provided a copy of the advisory opinion on 28 December 2016 and given an opportunity to submit comments. He responded and expressed his agreement with most of the medical advisory opinion's contents. He indicated his disagreement with the portion of the advisory stating that his behavioral health condition met retention standards. He also requested the Board consider his back and knees conditions and find that these conditions warranted referral to a Medical Evaluation Board (MEB). He also provided a letter from his spouse. Copies of the complete rebuttal and letter were provided to the Board for their review and consideration. 16. On 26 March 2019, the ARBA's medical advisor provided a second medical advisory opinion. The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing. A review of the available documentation found insufficient evidence of a medical disability or condition that would support a change to the reason for the discharge in this case. A copy of the complete medical advisory was provided to the Board for their review and consideration. 17. The applicant was provided a copy of the advisory opinion on 28 March 2019 and given an opportunity to submit comments. He responded by providing a letter from his spouse, expressing their disagreement with the findings of the medical advisory opinion. A copy of the complete rebuttal was provided to the Board for their review and consideration. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, advisory opinions and the applicant’s rebuttals to the advisories. The Board discussed the reason for his separation (Personality Disorder), the conclusions and assessment of the advising official regarding his condition (PTSD) and the opinion that the applicant met medical retention standards at the time of separation. The Board discussed the applicant’s additional submission of documents and rebuttals to the advisory opinions. The Board determined that Personality Disorder was not an appropriate reason for his separation, rather it should be Condition, not a disability. 2. After reviewing the application and all supporting documents, the Board found the relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 amending his DD Form 214 for the period of service ending 2 October 2007 to reflect the reason for separation as Condition, not a disability with the corresponding authority (AR 635- 200, para 5-17) and separation code. 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 a separation for physical disability due to PTSD. 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 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 provides the basic authority for the separation of enlisted personnel. Paragraph 5-13, in effect at the time of the applicant's separation, stated a Soldier could be separated for personality disorder (as determined by medical authority), not amounting to disability under Army Regulation 635-40, that interfered with assignment to or performance of duty. The regulation required that the condition be a deeply-ingrained maladaptive pattern of behavior of long duration that interfered with the Soldier's ability to perform duty. The diagnosis must have concluded that the disorder was so severe that the Soldier’s ability to function in the military environment was significantly impaired. 3. All Army Activities message 036-2009, subject: Policy Changes for Separation of Enlisted Soldiers Due to Personality Disorder (Army Regulation 635-200, paragraphs 5-13 and 5-17 (Other designated physical or mental conditions)) referenced Assistant Secretary of the Army (Manpower and Reserve Affairs) memorandum, Subject: Enlisted Administrative Separations, dated 10 February 2009. That memorandum stated that, effective immediately, administrative separation under Army Regulation 635-200, paragraph 5-13, was limited to enlisted Soldiers who have less than 24 months of active duty service as of the date separation proceedings are initiated. Army Regulation 635-200, paragraph 5-17, may now be used to separate enlisted Soldiers because of personality disorder when they have 24 months or more of active duty service. 4. 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, 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. 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. 5. 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. 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. 6. 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. 7. 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) AR20160011676 7 1