ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 May 2019 DOCKET NUMBER: AR20160014720 APPLICANT REQUESTS: in effect, correction of his records for permanent disability retirement in lieu of removal from the temporary disability retired list (TDRL). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veteran Affairs (VA) Compensation Decision * College transcripts * Letter of reprimand from employer FACTS: 1. The applicant states that though the physical evaluation board (PEB) decided to remove him from the temporary disability retired list (TDRL), he feels that this was in error. His disability of post-traumatic stress disorder (PTSD) effects all aspects of his life to include professional, educational, and personal. The VA rated him at 30% for PTSD. With the attached documentation of his unofficial transcripts and letter of reprimand from his job, it is easy to see how his rating should not fall below 30%. 2. The applicant provides: a. His college transcripts, dated 15 August 2016, which show a grade point average of 2.61. b. His VA rating decision, dated 19 December 2013, which shows: * obstructive sleep apnea with a rating of 50% effective date 28 September 2013 * PTSD with a rating of 30% effective date 28 September 2013 * right wrist strain with a rating of 10% effective date 28 September 2013 * lumbar Strain with a rating of 10% effective date 28 September 2013 * chronic conjunctivitis with a rating of 10% effective date 28 September 2013 * combined rating of 80% given to the applicant effective dated 28 September 2013 * c. A letter of reprimand from his employer, dated 2 May 2016, which states that the applicants job performance was unsatisfactory on several levels and that a dramatic improvement needed to take place for continued employment in Senator H_ office. The applicant had received and unacceptable amount of negative feedback from members of the southern Nevada veterans community who cited non- responsiveness, lack of sufficient communication, and overall poor treatment when they interacted with him. The applicant was not adequately following office procedures in terms of casework, including logging case files updates and properly using Cap Corp. His job performance was marked by an unacceptable level of disorganization. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 2 September 2003. He reenlisted in the RA on 11 December 2008. b. On 6 December 2012, a medical evaluation board (MEB) convened, and after consideration of clinical records, laboratory findings, and physical examinations, the MEB found the applicant was diagnosed with PTSD (childhood) and that the impairment for social/industrial adaptability is mild and no symptoms appear to interfere with occupational and social function. The MEB recommended his referral to a PEB. c. On 23 May 2013, a PEB convened and found his conditions prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit. The PEB rated his conditions and recommended at 60% combined disability rating with placement on the TDRL with a reexamination to occur sometime in February of 2014. He was counseled, waived his right to a formal hearing, and concurred with the decision. d. On 17 June 2013, he received discharge orders for physical disability with placement on the TDRL with an effective date of retirement of 27 August 2013. e. On 28 June 2013, he received amended discharge orders for disability retirement with an effective retirement date change to 27 September 2013. f. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged from active duty on 27 September 2013 under Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Chapter 4. 4. An advisory opinion was received from the medical advisor of the Army Review Boards Agency (ARBA) psychiatrist on 19 December 2018. The medical advisor stated: a. The applicant’s 14 September 2015 TDRL evaluation indicated that his PTSD symptoms “are transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.” As a result of the TDRL a. evaluation, the PEB removed the applicant from the TDRL and reduced his medical disability rating to less than 30%. b. The applicant’s last psychotropic medication refill was on 12 December 2016. As of 10 August 2018, the only medication being prescribed by the VA for the applicant was an antiviral medical for an unrelated medical condition. He has never been psychiatrically hospitalized. c. On 10 August 2018, he underwent a VA behavioral health screen and scored negative for both PTSD and depressive symptoms. d. After reviewing all of the available documentation, the ARBA psychiatrist concludes that there is insufficient cause to recommend a change in the PEB fitness determination for the applicant’s conditions of PTSD. The applicant’s contention that he continues to suffer from impairing PTSD symptoms notwithstanding, review of his records indicates that the applicant’s PTSD condition has improved to the point where he scores zero (negative) on the PTSD screen, is no longer taking medication for his PTSD and has not seen a VA behavioral health provider for treatment for his PTSD condition in over 2 years. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a response. He responded on 18 January 2019. He stated: a. He understood that the review process conclusion is not likely to be in his favor. He understood that he has made great strides since he left the military as the research performed by the review Board shows. He has not seen anyone or taken mediation for his anxiety and uses meditation to help calm his mind and it works as well as medication. b. He further state that he dislikes taking medication due to the medication prescribed by the Army during his active service and that meditation is a recognized practice to assist PTSD symptoms. He uses counseling tools to recognize his triggers prior to speaking. His spouse has a degree in social work and helps him through his bad days which is not seen in a quick investigation for benefits. He fought to stay in the Army while he was being medically boarded and found not fit for duty and medically retired. When he had a review of his TDRL his symptoms were at their worst and the medical review board found him unfit at 30% PTSD/Anxiety and 10% for his right knee. Two years later a review dropped him from 30% to 10% for PTSD/Anxiety and the Army is now saying he is fit to serve. He should have been kept at 30% since he can no longer reenlist due to the medical review board. c. As a result he has lost 5 years towards his future retirement, 5 years for gaining rank and 5 years for training and development as a Soldier. a. 6. By regulation, A Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability which the Soldier was temporarily retired. Adjustment will be made at the time of removal from the TDRL to reflect the degree of severity of those conditions rated at the time of placement on the TDRL and any ratable conditions identified since placement on the TDRL. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military service record, to include the medical advisory and rebuttal from the applicant, the Board found insufficient evidence to correct his records for permanent disability retirement in lieu of removal from the temporary disability retired list. 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. 5/13/2019 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, provides the evaluation for physical fitness of Soldier who may be unfit to perform their military duties because of physical disability. a. Paragraph 7-4 (Requirement for periodic medical examination and physical evaluation board evaluation) states a Soldier on the TDRL must undergo a periodic medical examination and PEB evaluation at least once every 18 months to decide whether a change has occurred in the disability for which the Soldier was temporarily retired. b. Paragraph 7-20 (Physical evaluation board processing) states the combined percentage rating at the time of re-evaluation is at least 30%.