ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 July 2019 DOCKET NUMBER: AR20160014476 APPLICANT REQUESTS: * To be considered for a medical retirement vice non-regular retirement * Personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * Statement of Medical Examination and Duty Status, 25 July 2008 * DA Form 3349 (Physical Profile), dated 24 March 2011 * Patient Registration form from Aurora BH, dated 8 September 2011 * Statement from AH, dated 10 January 2015 * Command referred evaluation, dated 23 January 2015 * Physical Evaluation Board (PEB) appeal, dated 6 May 2016 * 15 Year Notice of Eligibility * Army National Guard (ARNG) annual statement, dated 22 June 2016 * DD Form 2870 (Disclosure of medical or dental information), dated 25 February 2016 * Applicant’s health records * DD Form 2870, dated 14 April 2016 * Letter from XX medical board, dated 3 June 2016 * Letter from Case Management Division (CMD), dated 30 August 2016 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 the PEB agreed with the initial findings of him having (audible hallucinations). This diagnosis was by people in the field of Behavioral Health (BH). 1. These pseudoscience, snake-oil-sales people cannot actually prove their claims, moreover, he originally sought help from some people in the field of BH for depression, and only depression. He has evidence of his complaints about depression and depression like symptoms before and after treatment from people in the field of BH. He also included the letter he received from the Arizona Medical Board after filing a complaint he is deeply sadden by the way he was treated like something other than a human being. Veterans should not be treated this way by pseudoscience practicing clowns. a. He has evidence that he should be considered for a medical retirement and not a non-regular retirement. His complaints of depression started mid tour 2007; he did not take it seriously enough to have it documented. On 25 July 2008, he was found to have low CBC (unknown acronym) counts (decreased endurance), a depression symptom. On 15 December 2008 he complained about depression like symptoms to his then physician at Desert Canyon Family Medicine, and on 24 March 2011 he was given a permanent profile for depression. Since then, he had a whirlwind of different providers in the field of BH, which worked to sedate him but did not fix the underlying issue. He and his family will continue to need care, he will need care for depression, and Post- Traumatic Stress Disorder (PTSD). He does not have documentation of having PTSD on hand, but if you would like him to explain why he has PTSD you will easily understand why. b. He also has lower back problems of which you should have most evidence. This information was not included in his PEB packet as presented to the PEB board. 3. The applicant provides: a. A self-authored statement addressed above. b. Statement of medical exam and duty status dated 25 July 2008, which shows the applicant required further medical evaluation in accordance with (IAW) Secretary of Defense Post Deployment Health Reassessment (PDHRA) directive Military Personnel message 05-273 dated 3 November 2005. c. DA Form 3349, dated 24 March 2011, showing he had a permanent profile with functional limitations for depression. d. Patient Registration form from Aurora BH, dated 8 September 2011, showing he was seen for depression, anxiety, and dependence. e. Statement from XX, dated 10 January 2015 advocating for the applicant’s request to be medically retired due to physical disabilities (back problems), rather that due to psychiatric diagnosis. a. f. Command referred evaluation, dated 23 January 2015, subsequent to applicant having his security clearance revoked. Informed consent and limits of confidentiality specific to the evaluation process were discussed with member, who acknowledged and expressed understanding. g. PEB appeal, dated 6 May 2016, requesting the Physical Disability Agency find him fit for duty. In conclusion, Dr. X 's diagnosis explicitly rules out psychosis and schizophrenia, thus raising a reasonable doubt as to whether the AZARNG diagnosis is correct. Indeed, because Dr. X found the applicant fit for duty, another reasonable doubt is whether or not the applicant even has a mental health diagnosis. h. 15 Year Notice of Eligibility for retired pay for non-regular service (15 years) showing that he has completed at least 15 years but fewer than 20 years of qualifying service and will be eligible for retired pay at age 60 upon application. i. ARNG annual statement, dated 22 June 2016, which is a summary of his points earned towards retirement. j. DD Form 2870, dated 25 February 2016, requesting all information regarding the evaluation of the applicant completed 12 March 2013 for security clearance purposes. k. Applicant’s health records showing health care on 12 March 2013. l. DD Form 2870, dated 14 April 2016, requesting all records associated with the applicant’s evaluation done by mental health psychologist CPT X____. m. Letter from XX medical board, dated 3 June 2016, acknowledging the applicant’s complaint. n. Letter from CMD, dated 30 August 2016, showing receipt of his application. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 1 June 2000. He held military occupational specialty 25B (Information Systems Operator/Analyst). b. While still on active duty, he contracted with the Arizona Army National Guard (AZARNG) on 4 March 2004. On 31 May 2004, DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty for completion of required active service. He completed 4 years of active service. c. DD Form 214 shows he entered a period of active service on 21 January 2005 and was honorably released from active duty training on 27 May 2005. He completed 4 months and 7 days. a. d. DD Form 214 shows he entered a period of active duty on 3 January 2007 and was honorably released from active duty on 21 June 2008 after completion of required active service. He served in Afghanistan from 31 March 2007 until 22 March 2008. e. On 7 April 2016, PEB proceedings determined the applicant had a disabling condition of Schizophrenia, paranoid type. According to case referral memo, Soldier has experienced hallucinations since childhood and treatment for condition since 2011. Condition is non-compensable as it was not incurred while on a period of active duty. Condition is unfitting IAW Department of Defense Instruction (DoDI) 1332.18 (Disability Evaluation System) because this condition prevents Soldier from performing DA Form 3349, dated 6 December 2014 functional activities including: 5a carry and fire individual assigned weapon. On 15 May 2016, he did not concur and no written appeal was attached. On 25 May 2016, the applicant’s PEB was forwarded for disposition as a non-duty related case. f. Joint Forces Headquarters-Arizona published orders 154-621, dated 2 June 2016 honorably discharging the applicant from the ARNG and assigning him to the Retired Reserve effective 6 June 2016 IAW National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), 6-35l (8) g. On 6 June 2016, accordingly, the applicant was honorably discharged and transferred to the Retired Reserve. He had 16 years, 3 months, and 22 days of service for retired pay. h. ARNG current annual statement, dated 22 June 2016 confirms his time in service. It also shows a chart of different retirement options available to him and his retirement pay eligibility date. 5. On 6 May 2019, the ARBA advisor Clinical Psychologist rendered an advisory opinion in the applicant’s case. The advisor opined: a. There is evidence that the applicant's behavioral health conditions failed medical retention standards and that he should have been found unfit for duty by the PDA. Despite evidence that he had a childhood history of hearing voices; inpatient records reporting auditory hallucinations in the form of hearing multiple different voices, as well as having paranoia, confusion, and delusions; some use of antipsychotic medications and counseling, and loss of his security clearance with a recommendation for separation due to medical unfitness, at the time of the applicant's appeal to the PDA, it was concluded that reasonable doubt existed about him having psychosis, schizophrenia, or another mental health diagnosis based on evidence that he had not used medications in 2 years, collateral information that did not suggest a mental health problem or any impairment in his performance of his military duties, and reports of him having a stable marriage, educational degree, and employment. a. b. In summary, although there was inconsistency regarding the applicant’s diagnoses, level of functioning, and fitness for duty status medical report, the preponderance of evidence supports that the applicant more likely than not made a substantive effort to present in a healthy manner and to demonstrate no impairment in functioning while serving in TPU status (drill weekends). He voiced his desire for retention to remain on Active Duty despite symptoms of severe mental illness. More likely than not, his symptoms of Depression and Schizophrenia were best attributed to a diagnosis of Schizoaffective Disorder. c. The DSM-V described schizoaffective disorder: Someone with schizoaffective disorder meets the primary criteria (Criterion A) for schizophrenia, which includes two or more of the following: * Delusions * Hallucinations * Disorganized speech (speech that is easily derailed or is incoherent) * Grossly disorganized or catatonic behavior * Negative symptoms (flat expressions, loss of pleasure/anhedonia, lack of motivation/avolition, and other experiences that are "taken away" from the person) d. Schizoaffective disorder includes at least two of the above symptoms related to psychotic disorders and these DSM-5 criteria: * A major mood episode (either major depression or mania) that lasts for an uninterrupted period of time * Delusions or hallucinations for two or more consecutive weeks without mood symptoms sometime during the life of the illness * Mood symptoms are present for the majority of the illness * The symptoms aren't caused by substance use e. The symptoms of schizoaffective disorder much more closely describe the applicant’s overall mental health history. It is concluded that he more likely than not met criteria for Schizoaffective Disorder at the time of separation, did not meet medical retention standards IAW AR 40-501 and following the provisions set forth in AR 635-40; therefore, consideration for a change to his discharge is recommended. 6. On 13 May 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity (15 days) to submit a rebuttal. He did not respond as of 12 June 2019. 7. By regulation, AR 15-185 ABCMR applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 1. a. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. b. AR 635-40, 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. The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. c. DoDI 1332.18, Establishes policy, assigns responsibilities, and provides procedures for referral, evaluation, return to duty, separation, or retirement of Service members for disability in accordance with Title 10, United States Code (U.S.C.) (Reference (c)); and related determinations pursuant to sections 3501, 6303, 8332, and 8411 of Title 5, U.S.C. (Reference (d)); section 104 of Title 26, U.S.C. (Reference (e)); and section 2082 of Title 50, U.S.C. (Reference (f)). Enclosure 3, Appendix 6, as a member of the Selected Reserve with between 15 and 20 qualifying years, Soldiers may be eligible for a 15-year notice of eligibility for non-regular retirement as a result of being found unfit by the PEB. d. NGR 600-200, 6-35l (8), medically unfit for retention per AR 40-501. Commanders, who suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a complete medical examination per AR 40-501. BOARD DISCUSSION: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. Based upon the preponderance of evidence, the Board determined there is sufficient evidence to grant partial relief, by referring the applicant’s record to the Office of the Surgeon General for a medical evaluation decision. 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 that the evidence presented was 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 referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his 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 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 changing his type of discharge without evaluation under the IDES, and a personal appearance before the Board. 8/9/2019 X CHAIRPERSON Signed by: 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. 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 (AR) 15-185 ABCMR prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 40-501 (Standards of Medical Fitness) 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 the Veteran's Administration Schedule for Rating Disabilities (VASRD). Department of Defense Instruction (DODI) 1332.39, and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), appendix B (Army Application of the Veterans Administration Schedule for Rating Disabilities), modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions. Ratings can range from 0 to 100 percent, rising in increments of 10 percent. Paragraph 2-27c (Learning, Psychiatric and behavioral disorders) current or history of disorders with psychotic features such as schizophrenia (295), paranoid disorder (297), and other unspecified psychosis (298) does not meet the standard. 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth the policies for the disposition of Soldiers found unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. a. Paragraph 3-1 states that 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 a. Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. b. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of a 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 service. c. Paragraph 4-17 states PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability. d. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. The VA can evaluate a veteran throughout their lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. e. Appendix B, paragraph of that regulations states conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness. 5. Department of Defense Instruction 1332.18 (Disability Evaluation System) establishes policy, assigns responsibilities, and provides procedures for referral, evaluation, return to duty, separation, or retirement of Service members for disability in accordance with Title 10, United States Code (U.S.C.) (Reference (c)); and related determinations pursuant to sections 3501, 6303, 8332, and 8411 of Title 5, U.S.C. (Reference (d)); section 104 of Title 26, U.S.C. (Reference (e)); and section 2082 of Title 50, U.S.C. (Reference (f)). Enclosure 3, Appendix 6, as a member of the Selected Reserve with between 15 and 20 qualifying years, Soldiers may be eligible for a 15-year notice of eligibility for non-regular retirement as a result of being found unfit by the Physical Evaluation Board. 6. National Guard Regulation 600-200 (Enlisted Personnel Management), 6-35l (8), medically unfit for retention per AR 40-501. Commanders, who suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a 1. complete medical examination per AR 40-501. If the Soldier refuses to report as directed, see paragraph 6-36u below. Commanders who do not recommend retention will request the Soldier’s discharge. When medical condition was incurred in line of duty, the procedures of AR 600-8-4 will apply. Discharge will not be ordered while the case is pending final disposition. This paragraph also includes those Soldiers who refuse or ineligible to reclassify into a new Military Occupational Specialty RE 3. //NOTHING FOLLOWS//