BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160014067 BOARD VOTE: _________ _______ ________ 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: 3 August 2017 DOCKET NUMBER: AR20160014067 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. ___________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: 3 August 2017 DOCKET NUMBER: AR20160014067 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 a medical discharge with concurrent correction to his narrative reason for separation and separation code. 2.  The applicant states: a.  He should have been medically discharged because he is a permanently disabled combat veteran with a 100 percent disability rating. b.  He served for 3 years and he deployed to Afghanistan and Iraq for 15 months. He was injured three times. First, while on a reconnaissance patrol when he fell down a rock face and tumbled down 60 feet to a ledge while carrying a prototype Mark 48 machine gun with 1,300 rounds of 7.62 millimeter ammunition. He lost consciousness, perhaps because of all the weight of the new weapon and rounds which cut off his circulation and blood flow while climbing vertically straight up, or because of the fall. Secondly, he sustained injuries from an enemy rocket propelled grenade (RPG) while dismounted when his unit was ambushed on 25 June 2010. His third injury occurred when he was inside a Mine Resistant Ambush Protected vehicle which encountered an improvised explosive device (IED) during convoy operations. c.  Two weeks before the end of his deployment, he was medically evacuated to a regional medical center in Landstuhl, Germany. Subsequently he was medically transferred to Washington, DC, for treatment and then to West Point, NY, where he was part of the Wounded Warrior Program. He suffers from physical injuries, memory loss, neurological, and psychological injuries. At West Point he injured himself while walking from his barracks to medical treatment. West Point is a great place to go for education, but it is not an ideal place to go to as a patient. d.  He was an orphan who entered the foster care system. He was in foster care for most of his adolescence so he did not have a wealth of knowledge to fall back on nor anyone to guide him.  He was unfamiliar with administrative procedures and sought to return to his home. Thus, he did not read and comprehend the fine print as he should have. While discharging him, West Point personnel did not include his overseas military service or his authorized awards and decorations on DD Form 214 (Certificate of Release or Discharge from Active Duty). Subsequently he was issued DD Forms 215 (Correction to DD Form 214) to correct his record. 3.  The applicant provides: * 2012 Department of Veterans Affairs (VA) rating decision * 2015 VA award letter * 2010 DD Form 214 * 2011 DD Form 215 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 Massachusetts Army National Guard (MAARNG) on 27 March 2008. He was trained in and held military occupational specialty (MOS) 11C (Indirect Fire Infantryman). He transferred to the Connecticut ARNG (CTARNG). 3.  He was ordered to active duty on 18 November 2009 and subsequently served in Afghanistan from 6 February to 30 October 2010 (as shown on his DD Form 215). 4.  He was honorably released from active duty on 11 December 2010 in accordance with chapter 4 of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations). His DD Form 214 shows in: * Item 24 (Character of Service) – honorable * Item 25 (Separation Authority) – AR 635-200, Chapter 4 * Item 26 (Separation Code) – MBK * Item 28 (Narrative Reason for Separation) – completion of required active service 5.  He was honorably discharged from the CTARNG on 3 November 2011. His NGB Form 22 (Report of Separation and Record of Service) shows he completed 3 years, 7 months, and 7 days of ARNG service. 6.  On 25 April 2012, the VA awarded him service-connected disability compensation for multiple conditions including post-traumatic stress disorder (PTSD) with psychotic features (major depressive disorder, anxiety, and sleeping disorder), post-traumatic headaches, tinnitus, erectile dysfunction, and traumatic brain injury (TBI). On 17 August 2015, the VA increased his rating to 100 percent effective 13 March 2015. 7.  In the processing of this application, the Army Review Boards Agency psychiatrist rendered an advisory opinion on 10 April 2017. The psychiatrist referenced the Diagnostic and Statistical Manual of Mental Disorders-5th Edition; AR 40-501 (Standards of Medical Fitness) with rapid revision, dated 4 August 2011; and AR 635-200, dated 6 September 2011. a.  Documentation reviewed included his application, DD Form 214, VA disability awards letter, and electronic military medical record (AHLTA). b.  The VA determined the applicant was service connected for the following conditions: * PTSD (effective 12 December 2010) – 70 percent * post-traumatic headaches – 50 percent * tinnitus – 10 percent * PTSD (effective 13 March 2015) – 100 percent c.  Review of his military medical record shows the applicant was initially seen by behavioral health in Afghanistan in 2010. He was medically evacuated to Landstuhl Regional Medical Center and from there he was sent to the Warrior Transition Unit in West Point, NY. (1)  On 11 March 2010, he was command referred to behavioral health due to his demonstrating "odd behaviors, suicidal statements, poor judgment and inability to work." He was diagnosed with occupational problems and returned to his unit. (2)  On 16 October 2012 [sic], he presented himself to behavioral health again in a state of distress due a pending investigation wherein he was to provide testimony. It was noted that there were elements of paranoia in his presentation. He was given a deferred diagnosis on Axis I and was medically evacuated to Landstuhl, Germany for further evaluation. (3)  On 19 October 2010, he was evaluated by behavioral health staff at Landstuhl. He denied having any behavioral health problems. He reported a history of chronically poor sleep since childhood. He denied paranoia, hallucinations or psychoses. He denied suicidal or homicidal ideation. (4)  On 19 October 2010, he was seen by TBI Neurology for TBI screening. He was diagnosed with mild TBI, asymptomatic. His Military Acute Concussion Evaluation score was 26/30 (a score less than 25 requires further evaluation). He reported a history of multiple head injuries both before and during his active duty service: (a)  On 10 July 2010, the applicant reported that an RPG detonated approximately ten to thirty feet from him. The force from the blast caused him to fall forward. He denied loss of consciousness or post-concussive symptoms. (b)  On 25 July 2010, he reported that an IED detonated behind the vehicle in which he was riding. He reported being slammed against the door. He denied loss of consciousness but appeared "zoned out" afterwards for a brief time, according to his squad leader. (c)  In August 2010, he reported he was climbing a mountain carrying and wearing heavy equipment. He reported he fell 60 feet down this mountain, landing on his back. He reported loss of consciousness but was unable to say for how long he was out. He stated he resumed climbing the mountain after he regained consciousness. (Of note, there is no documentation showing he received medical care for these reported head injuries/concussions in his AHLTA file). (5)  In October 2010, the applicant was medically evacuated from Landstuhl to the Warrior Transition Unit (WTU) at West Point, NY: (a)  On 27 October 2010, he was evaluated by WTU Psychiatry. He reported a chronic history of nightmares, avoidance behaviors, irritability, and increased hypervigilance/startle reaction. He was diagnosed with adjustment disorder with mixed disturbance of emotions and conduct; alcohol abuse in full, sustained remission; and PTSD was ruled out. (b)  On 4 November 2010, he completed another PTSD Checklist (PCL) with a score of 52 (above 50 indicates need for further PTSD evaluation). He did not report any re-experiencing symptoms of PTSD. He did report hypervigilance and avoidant behaviors. His diagnosis remained the same. (c)  On 9 November 2010, during a urine drug screen he tested positive for cocaine, morphine and oxycodone. (d)  On 17 November 2010, he underwent a neuropsychological evaluation. This evaluation indicated he was raised in a chaotic environment and lived with his grandmother until age four. When he was 14, his mother was arrested for vehicular manslaughter and the applicant was placed in the foster care system. He sustained a head injury at age 15 with brief loss of consciousness. He described a longstanding history of sleep impairment with a lifelong history of night terrors. He witnessed six deaths from ages 9 through 16: his uncle died due to health issues, he found his intoxicated aunt lying face down in a pool, he saw two people who died in motor vehicle accidents, he witnessed a suicide, and he saw a relative dying from an aneurysm. (6)  On 18 November 2010, the applicant was referred to the Army Substance Abuse Program (ASAP) and diagnosed with alcohol abuse. He was seen in Psychiatry on 18 November 2010. The psychiatrist noted the applicant was angry and frustrated with all of the urine tests and blood draws he was being forced to endure. He felt like people were lying to him. He reported poor sleep. The examining psychiatrist commented, "The Soldier’s symptoms seem more related to his personality, alcohol abuse and possible drug abuse than to PTSD.” (7)  On 19 November 2010, he was suspected of altering a non-custodial urine drug screen. (8)  During neuropsychological testing, it was noted that he was observed to be inattentive and impulsive, he fell asleep during the independent computerized tasks, his effort was variable and his performance was inconsistent, especially on tests of memory and attention. Due to this fact, his overall neuropsychological testing pattern could not be definitively determined. His diagnoses were alcohol abuse (by history), cocaine abuse (by history), and rule out malingering vice a factitious disorder. (a)  On 22 November 2010, Psychiatry diagnosed the applicant with adjustment disorder with mixed disturbance of emotions and conduct, alcohol abuse, ruled out PTSD, ruled out substance induced mood disorder, ruled out marijuana abuse, and consider antisocial personality disorder. (b)  On 2 December 2010, ASAP added cannabis abuse to his list of diagnoses. (9)  On 30 November 2010, the medical documentation indicated, "At this time, the Medical Retention Decision Point is made to release him from active duty back to his unit." (10)  On 8 December 2010, the applicant reported to Psychiatry having had nightmares related to trauma since childhood. He stated, "Afghanistan may have added a few more." He continued to report some hypervigilance and avoidance behaviors. The examining psychiatrist commented, "…as such, his PTSD-type symptoms seem to be more related to childhood experiences rather than Afghanistan. They may have been aggravated by Afghanistan. However, the Soldier does not appear to have social or occupational impairment from these symptoms." In his assessment, the examining psychiatrist goes on to say: The Soldier reported to me today some symptoms consistent with PTSD, particularly as related to his childhood. He has the re-experiencing symptoms of nightmares. He has hyperarousal symptoms of increased startle response and hypervigilance. He has some avoidance symptoms but not 3 as needed for PTSD diagnosis. Also the disturbance does not appear to be causing clinically significant distress or impairment in social, occupational or other areas of function. Thus, I have maintained the Rule Out PTSD notation on Axis I. d.  Review of the applicant’s military medical records indicates that he exhibited some symptoms of PTSD while on active duty but did not meet criteria for the diagnosis of PTSD. It was felt that most of his PTSD symptoms were due to childhood trauma possibly aggravated by military service. It was noted several times in his records that his PTSD symptoms did not interfere with his ability to function socially or occupationally. There is no documentation that the applicant required extended or repeated psychiatric hospitalizations for his PTSD symptoms. The applicant only required one prescription medication to help with his chronic sleep problems which he reported he rarely took. No other medication was required to treat his PTSD symptoms. e.  The applicant has also reported a history of several head injuries, three of which he reported occurred on active duty. There is no documentation in his medical record showing any medical treatment at the time of these head injuries. His TBI screening indicated a Military Acute Concussion Evaluation (MACE) score of 26/30 and diagnosed him with asymptomatic mild TBI. Neuropsychological testing indicated that the applicant put forth inconsistent effort on the measures of attention, memory, single word reading and processing speed; in the areas of verbal fluency, vocabulary knowledge, fund of general information, abstract reasoning, visual spatial skills, and visual construction, his scores were in the average to high average range. There is no indication in his medical record that he experienced any significant impairment from his reported head injuries. f.  There is no indication in the medical record that the applicant failed to meet military retention standards in accordance with AR 40-501. g.  The applicant also requested that his case be reviewed for military medical disability/retirement. He has provided his VA disability ratings letter as a supporting document. It is important to understand that the VA operates under different rules, laws and regulations when assigning disability percentages than the Department of Defense (DOD). In essence, the VA will compensate for all disabilities felt to be unsuiting. The DOD, however, does not compensate for unsuiting conditions. The DOD only compensates for unfitting conditions. The applicant’s condition was not felt to be unfitting when he was on active duty as indicated by the fact that he did not meet diagnostic criteria for PTSD, there is no history of recurrent or prolonged hospitalization for symptoms related to PTSD and the applicant suffered no social or occupational impairment as a result of his PTSD symptoms. h.  It is also important to note that the DOD does not compensate service members for anticipated future severity or potential complications of conditions that were incurred during active military service. This is a role reserved for the VA. i.  Based on the information available for review at this time, there is insufficient evidence to support changing the applicant’s narrative reason for discharge from "Completion of Required Active Service" to "Medical." Additionally, reviewing of the applicant’s available service treatment records indicates that the applicant 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 military medical discharge/retirement is not warranted. 8.  The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or additional comments. He did not respond. REFERENCES: 1.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army disability 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 that contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-1 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. b. 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. c. Paragraph 3-4 states that under the laws governing the Army Physical Disability Evaluation System, 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: * 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 * 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 2. 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 Physical Evaluation Board (PEB) rates all disabilities using. 3. 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. 4. 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. 5. 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. 6. There is a difference between the VA and the Army disability systems. The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating. If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature. The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of a PEB hearing. The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating. The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on changes in the disability. DISCUSSION: 1. The applicant served in the MAARNG and CTARNG from 27 March 2008 to 3 November 2011. During this period, he was mobilized and served on active duty from 18 November 2009 to 11 December 2010. He served in Afghanistan from 6 February to 30 October 2010. 2. The applicant provides a 2012 VA rating decision showing he was awarded a combined service-connected disability compensation for PTSD, post-traumatic headaches, tinnitus, and erectile dysfunction. None of these conditions were diagnosed, found to have failed retention standards, or found to have been a basis for referring the applicant through the disability evaluation system prior to his release from active duty in December 2010. a. A key element of the Army disability system is the Soldier's condition at the time of separation. It is not intended to be a prediction of future medical ailments. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the disability evaluation system. Referral into the Physical Disability Evaluation System is warranted if there is a medical diagnosis of a disabling condition. b. It is very clear that at the time the applicant was released from active duty on 11 December 2010 there was no evidence to show he had a permanent physical profile, a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade, a mental status evaluation that confirmed a behavioral health or any other mental health problem, or a medical examination that warranted his entry into the disability system. c. Referral into the Army disability evaluation system requires that a designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. At the time of the applicant's release from active duty, he did not have an unfitting condition. It was noted in the advisory opinion that the applicant appears to have suffered childhood trauma and based on his experiences, he was exhibiting PTSD symptoms related to his childhood trauma, not related to his experiences in Afghanistan. Additionally, the applicant said he injured his head three times while deployed, yet there are no entries showing he sustained a concussion or related head injury while deployed. The act of falling does not in and of itself lead to a diagnosis of concussion or post-concussion syndrome or TBI. d. The Army awards disability ratings when a disability renders a Soldier unfit to perform his or her duties. Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. The VA may award ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability. The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating. e. A thorough medical review of the applicant's service and available medical records was conducted by an Army psychiatrist. Based on the information available for review including extensive treatment records, the Army psychiatrist found insufficient evidence to support entering the applicant’s record into the PDES for consideration of potential medical retirement or separation. The applicant did not suffer from a medically unfitting condition and met medical retention standards while on active duty, thus he was discharged accordingly at the completion of his required service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160014067 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160014067 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2