ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 June 2019 DOCKET NUMBER: AR20170000417 APPLICANT REQUESTS: * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows: * Change of Separation Code and narrative Reason for Separation * Change separation to reflect a medical retirement, based upon a Department of Veterans Affairs (VA) formal service-connected diagnosis of post-traumatic stress disorder (PTSD), a 60% VA disability rating and an honorable discharge * personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) and Attachments * DD 214 * VA Letter * VA Compensation and Pension (C&P) Exam * Ciox Health provided Hampton Behavioral Health Center Records * Self-Authored Letter for submission of Acceptance letter from the Graduate Theological Foundation * Email notification with rebuttal to medical advisory FACTS: 1. The applicant states he believes the record to be in error or unjust because he presented evidence from competent medical professionals supporting his while-in service diagnosis of PTSD. He presented formal documentation from the DVA substantiating his diagnosis. He indicates that based on his diagnosis of PTSD, his former command, did not recommend, or present him, the opportunity to have his 4 March 2014 Board of Inquiry case be presented before an objective and impartial Army Medical Review Board. He states the Army utilized a February 2012 General Officer Memorandum of Record (GOMOR) that appeared on his unrestricted fiche file as a means to involuntarily separate him two years later in November 2014 2. A review of the applicant’s service records show: a. On 12 January 1998, a DA Form 61 (Application for Appointment) shows he applied for appointment as a commissioned officer in the United States Army Reserve (USAR) in the Chaplains (CH) branch. b. On 12 January 1998, he authenticated a DA Form 3574 (Certificate of Acknowledgement and Understanding of Service Requirements for Individuals Applying for Appointment in the USAR Under Provisions of Army Regulation (AR) 135-100 or 135-101, as Applicable for Individuals Without Prior Service) with his signature indicating he understood and accepted the conditions of his voluntary application for appointment. c. On 16 March 1998, he was appointed as a USAR commissioned officer with a specialty skill identifier of 56A, Chaplain, and was credited with 3 years, 0 months, 0 days for his service in an active status. d. He entered active duty on 10 June 2000. He served in Iraq from January 2005 to December 2005. He was honorably discharged from active duty on 28 September 2008 for miscellaneous/general reasons. e. On 29 September 2008, he entered a period of active service with the United States Army Reserve. f. On 25 February 2012, he received a General Officer Letter of Reprimand (LOR) for his poor behavior and judgment following an incident of domestic violence at his on- base housing. The LOR was administrative in nature under the provisions of AR 600-37 (Unfavorable Information). The LOR stated on the evening of 4 November 2011 Joint Base MDL security was called to his base housing unit at the request of his spouse. His spouse told security investigators that he locked her in the home, threatened her and brandished a firearm. Security police confiscated your firearm; arrested him and had to make arrangements with his supervisor to provide separate lodging for the safety of his spouse. Domestic violence of any kind will not be tolerated in this command. His personal behavior as a commissioned officer and chaplain fell drastically short of expectations and Army standards in several respects. His failure to control his emotions left the imposing officer with serious doubt of his ability to serve as a chaplain and commissioned officer. g. On 27 June 2013, a Department of the Army Suitability Evaluation Board (DASEB) in Docket Number AR20130007708 shows: a. * he requested the DASEB transfer of the administrative GOMOR to the restricted section of his Army Military Human Resource Record (AMHRR) stating he regrets his behavior and takes sole responsibility for his actions, and remains committed to self-improvement and continues to utilize resources to assist him in effectively coping with his PTSD * the DASEB determined the evidence presented did not provide substantial evidence that shows, the document in question has served its intended purpose or that its transfer would be in the best interest of the Army * the DASEB determined the overall merits of the case did not warrant the requested relief and directed the decision memorandum to be filed in the applicant’s AMHRR, and the appeal documentation to be filed in the restricted section * on 16 July 2013, the DASEB decision was forwarded to the US Army Human Resources Command h. On 17 October 2013, an Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130013999 shows: * he requested the ABCMR transfer the GOMOR and associated documents from his performance folder to the restricted folder of the AMHRR * he stated the decision of the DASEB was unjust and unfair because there is no derogatory information in his AMHRR; counseling and medical documents were submitted indicating his progress; letters of recommendation for transfer of the GOMOR were provided by the imposing authority, and his current Officer Evaluation Report (OER) has not been considered as evidence of his performance since receiving the GOMOR * the Board indicated the governing Army Regulation (AR) 600-8-104 (Army Military Human Resource Records Management) states, administrative letters of reprimand will be filed in the performance folder of the AMHRR * the Board discussion indicated there is no evidence the GOMOR was improperly imposed, and that it is properly filed in the applicant’s AMHRR in accordance with the governing regulation * the Board discussion addressed the insufficient evidence to show the GOMOR has served its purpose, or that it was is in the best interest of the Army to transfer the document, and there is an insufficient basis for granting the requested relief * the Board determined the evidence presented does not demonstrate the existence of a probable error or injustice, and the overall merits of the case are insufficient as a basis for correction of the records i. On 20 November 2014, he was honorably discharged from active duty for unacceptable conduct under the provisions of AR 600-8-24 (Officer Transfers and Discharges). His DD 214 shows he served 6 years, 11 months, 22 days from 29 September 2008 to 20 November 2014. 3. On 14 December 2015, the DVA provided the applicant a completed rating decision for his claims submitted on 11 September 2015. a. The rating decision shows the following diagnosed conditions as service connected and Gulf War incurred effective on 21 November 2014, ta a combined rating of 60%. * 30 percent for other specified trauma and stressor related disorder with adjustment-like disorder with delayed onset of symptoms (claimed as anxiety and PTSD); with a future exam in August 2020. * 30 percent for bilateral pes planus (claimed as foot problems/pain). * 10 percent knee strain, left lower extremity, with shin splints and chronic exertional compartment syndrome. * 10 percent knee strain, right lower extremity, with shin splints and chronic exertional compartment syndrome. b. When applied in accordance with the VASRD § 4.25 (Combined Ratings Table) and VASRD § 4.26 (Bilateral Factor (BF)), the applicant’s rated conditions equate to the 60 percent rating as follows (10 + 10 = 19 + 1.9 (BF) = 20.9 = 21 + 30 = 45 + 30 = 62 = (converts/rounds to) 60% 4. On 3 June 2016, an Army Discharge Review Board (ADRB) in Docket Number AR20150001098 shows: * he requested a change to the narrative reason for separation and separation code, as he seeks relief contending, in effect, he has successfully overcome the allegations within the GOMOR (used as a reason for his elimination), and the other reasons of misconduct and substandard performance were unfounded * he requested the ADRB consider a change to the narrative reason for separation and an upgrade of his separation code; he liked his narrative reason for separation to be in conjunction with his diagnosis and treatment of his PTSD and his honorable discharge * the ADRB medical officer stated, based on information available at the time for review, the applicant was diagnosed with PTSD while on active duty and after service by the DVA * the ADRB determined there is insufficient evidence in the file to determine if the PTSD was associated with the misconduct which led to the discharge, and denied the request upon finding the separation was both proper and equitable 5. On 15 September 2016, the DVA provided a letter that shows the applicant was receiving continued behavioral health treatment from February 2015, and on 5 October 2016, the DVA provided the applicant’s Treatment Progress Notes. A review of the documents show that on 27 July 2015: 1. * the DVA completed a C&P Exam and the associated Initial PTSD Disability Benefits Questionnaire (DBQ) that shows a diagnostic summary indicating he does not have a diagnosis of PTSD that conforms to the diagnostic criteria under Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM 5) criteria, but does have another mental disorder diagnosis based on the evaluation that day * the current diagnosis is listed as Other Specified Trauma and Stressor related Disorder with Adjustment-like disorder with delayed onset of symptoms * his occupational and social level of impairment is due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or, symptoms controlled by medication * he reported his mental health treatment began at Fort Dix where he sees his therapist but is not currently on any psychotropic medications, but was on medication for about one and a half years at the end of his military service * he reported that during his time at Fort Dix he was an inpatient at Holliswood Hospital for PTSD in December 2011, and then outpatient follow-up at Hampton Behavioral Health until February 2012 * further follow-up was conducted by psychiatrists at Fort Dix where he was treated with medication for anxiety * he reported several stressors from his deployment in Iraq and Kuwait to include recollections and nightmares * the clinical writer opined that the applicant does not meet diagnostic criterion for PTSD but does meet criterion for Other Specified trauma and Stressor related disorder 6. On 8 January 2017, he provided a self-authored letter requesting clemency and a medical retirement based on his service connected PTSD and anxiety disorder, the DVA 60 percent disability rating, and his completion of 16 years of service. He stated the documents he provided support his character and professionalism, and the nexus between his PTSD and former misconduct that led to his GOMOR. 7. On 30 May 2017, the ARBA office received a copy of the applicant’s authorized Hampton Behavioral Health Center records provided by Ciox Health in Atlanta GA, which is a release of information (ROI) provider. The records show: * he was treated at Hampton Behavioral Health Center from 2 December 2011 to 13 January 2012 * he was referred by Fort Dix/McGuire Mental Health for treatment of PTSD related issues, and that he was recently released from Holliswood Hospital * his records referenced PTSD on 29 November 2011, 5 December 2011, and 21 December 2011 * * the record includes his 13 January 2012 discharge form that shows he was discharged with an axis 1 diagnosis of PTSD; and Anxiety Disorder, Not Otherwise Specified * an Army Review Board Agency (ARBA) medical member conducted a thorough review of the records and provided a summary in the medical advisory opinion dated 15 June 2017 8. On 8 June 2017, he provided a self-authored letter dated 1 June 2017 referencing his acceptance into a doctoral academic program on 14 July 2016 from the Graduate Theological Foundation. 9. On 15 June 2017, the Army Review Boards Agency (ARBA) medical advisor rendered an advisory opinion in the processing of this case. She opined: a. Review of his Armed Forces Health Longitudinal Technology Application (AHLTA) records indicate the applicant was evaluated multiple times by different providers in different military treatment facilities all of whom agreed he did not meet criteria for PTSD. b. Review of civilian medical records indicate his PTSD symptoms were very mild and resolved almost immediately after being hospitalized. PTSD symptoms of such a mild severity would be extremely unlikely to result in the applicant losing control and engaging in domestic violence. c. Based on available documentation, there is insufficient evidence to support the applicant’s claim that his misconduct was due to PTSD or any other boardable mental health disorder. d. Based on his military medical documentation, there is no evidence available to show he was diagnosed with or treated for any behavioral health (BH) condition that permanently prevented him from performing his assigned duties. While discharged with various BH conditions, they did not result in recurrent hospitalizations, permanent duty limiting profiles or significant interference in military functioning, as evidence by his Officer Evaluation Reports (OERs). e. The applicant was found, on multiple occasions, to meet military medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness). Therefore, a referral of the applicant’s record for a military medical retirement is not warranted. The applicant’s BH condition does not mitigate the offense leading to his discharge from the Army. 10. On 20 June 2017, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. On 5 July 2017, the applicant submitted a self- authored letter in response to the advisory opinion where he states he is resubmitting all documents that he previously submitted to ARBA regarding his current case and 1. requested another review/re-evaluation, and an impartial assessment of the facts in his case. A review of his letter shows: a. He is requesting the Army to medically retire him based upon his formal PTSD diagnosis with a 60% DVA disability rating, and his completion of 16 years of honorable service. In order to accomplish this, he is requesting: * an impartial and objective analysis of his case taking heed to all the facts and documents presented in his case * observe the transparency and questionable actions of his former command * a medical retirement * a face-to-face meeting with the ABCMR Board members * consideration for reinstatement in service at the grade, rank and MOS at time of separation on 20 November 2014, so he may faithfully serve until completion of 20 years of active federal service b. He states he was formally and properly diagnosed with PTSD by competent civilian and DVA medical health professionals. His arguments are: * the mental health specialist who interviewed him at West Point, worked on behalf of the former command, and questioned the merits of his formal education background, which led the applicant to believe there was bias on her part * the former command was blatantly biased in terms of due process; a civilian mental health specialist wrote comments to intentionally dismiss his PTSD diagnosis, so the command would make the observation that the diagnosis was not creditable * the command failed to consider and acknowledge that no emotional or physical maltreatment of his former spouse in September 2013 existed * the evidence of his 15-6 investigation in October 2013 references there was no act of misconduct on his part, and specifically recommends his return to duty * his ability for an impartial administrative hearing in March 2014 was restricted and limited due to the former command did not present his case before an objective medical officer or medical review board prior to his separation in November 2014 * denying him the opportunity to have his case presented before an objective medical review board, based on his PTSD diagnosis, is a blatant violation of his right to the legal privilege of due process” and violation of federal law regarding veterans diagnosed with PTSD/TBI c. He raises many questions: a. * why would the Army return him to active duty in November 2011 and approve him to live in the same house with his spouse; if he had been accused of domestic violence? * why would his former commanding officer recommend his retention and return to duty with his unit? * why would his former commander approve him to serve as his assistant deputy command chaplain with full knowledge of his former marital difficulty? * why would his former command proceed to involuntarily separate him years after the incident had been resolved, and after a formal 15-6 investigation substantiated the fact there was no act of misconduct on his part? * if erroneously discharged, why would the Army grant him an honorable discharge in 2014? * if the DVA diagnosed the Soldier/Veteran with PTSD and the specified branch of service intentionally rejected the diagnosis, isn’t that violating federal law and present U.S. military policy given the understanding that each branch of the US Armed Forces is to utilize the same medical policy standards as the DVA to measure and assess a veterans disability or medical condition? d. He contends: * the advisory contradicts current U.S. military policy, and policy enacted by Congress/federal law, and the assessments/observations made by the DVA and civilian medical professionals who made the diagnosis * the opinion is a strong paradigm of the bias that exists in the Army system when veterans/Soldiers are diagnosed with certain mental health issues, and the opinion dismisses/rejects federal law which was passed/adopted by Congress in 2016, and in recent years regarding the Fairness for Veterans Act in relationship to veterans who are erroneously discharged from military service with the addendum or label of misconduct * the assertion that “I threatened to kill my wife,” is an inaccurate/untruthful statement which indicates a lack of impartiality and attention to detail on the part of the medical officer/advisor, and requests that portion of the statement be redacted from the advisory 11. By regulation (AR 15-185), 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. 12. By regulation (AR 6356-40), a key element of the Army's disability system is the Soldier's condition at the time of separation. Additionally, an award of service- connected disability compensation by another agency (the VA) does not establish error by the Army. Operating under different laws and their own policies the VA does not have the authority or the responsibility for determining medical unfitness for military 1. service. The VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability. 13. The Army 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 they can no longer continue to reasonably perform because of a medical disability incurred or aggravated in service. Here, the applicant's service was not interrupted by a medical condition. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the medical advisory’s finding that the applicant was found, on multiple occasions, to meet military medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness) and that a referral of the applicant’s record for a military medical retirement is not warranted, the Board concluded there was insufficient evidence to show an error or injustice which would warrant making a change to the narrative reason for separation. The Board also wanted to inform the applicant the VA and DoD use didn’t scoring systems when determining disability ratings; therefore, it is expected that these agencies have differing disability ratings. 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. 6/12/2019 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. 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. 2. AR 635-5-1 (Separation Program Designator (SPD) Codes prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the separation program designator (SPD) codes to be entered on DD Form 214 (Certificate of Release or Discharge from Active Duty). a. Paragraph 2-3 (Rules for separation program designator code control and usage) sates the SPD code will be entered in block 26 of the DD Form 214 per AR 635-5 (Separation Documents) and this regulation. The narrative reason for separation will be entered in block 28 of the DD Form 214 exactly as listed in tables 2-2 or 2-3, and no deviation is authorized. b. Paragraph 2-5 (Separation program designators applicable to officer personnel) includes table 2-2 which lists the SPD codes in alphabetical order, the narrative reason, and the regulatory authority . 3. AR 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty (AD) to reserve component (RC) and discharges for all officers on AD for 30 days or more. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges. a. Chapter 4 (Eliminations) prescribes the tasks, rules, and steps for eliminating officers in the Active Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interests of national security. b. Paragraph 4-2 (Reasons for elimination) states while not all inclusive, when one of the following or similar conditions exist, elimination action may be or will be initiated a. as indicated for (a) substandard performance of duty, (b) misconduct, moral or professional dereliction, or in the interests of national security, or (c) derogatory information. c. Paragraph 4-3 (Medical condition) states an officer referred or recommended for elimination under this chapter who does not meet medical retention standards will be processed through both the provisions of this regulation and through the MEB/PEB process as described in paragraph 1-22 of this regulation. When it is determined the officer’s mental condition contributed to military inefficiency or unsuitability, the medical evaluation will include a psychiatric study of the officer. The study will indicate whether the officer was able to distinguish right from wrong and whether the officer currently has the mental capacity to understand the board and judicial proceedings and participate in defense. When applicable, the report will also indicate whether the incapacitating mental illness could have been the cause of the conduct under investigation. d. Paragraph 4-5 (Separation date) states an officer approved for involuntary separation by the Secretary of the Army or his designee or whose request for resignation or discharge in lieu of elimination is approved will be separated accordingly. 4. AR 40-501 (Standards of medical fitness) governs medical fitness standards for retention and separation, including retirement. Chapter 3 provides various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual. 5. 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 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. a. 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. 6. The Department of Veterans Affairs (DVA) Veterans Administration Schedule for Rating Disabilities (VASRD) is a federal regulation that lists detailed requirements for assigning military disability ratings, where each rating is meant to reflect how much the service member’s ability to work is affected by his condition. a. In accordance with § 4.130 (Schedule of ratings - mental disorders) the nomenclature employed in this portion of the rating schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM IV). b. The DVA schedule for the 30 percent rating is set forth as follows: for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior , self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). c. In accordance with the VASRD § 4.25 (Combined Ratings Table) results from the consideration of efficiency of the individual as affected first by the more disabling condition, then by a lesser disabling condition. Thus a person with a 60 percent disability is considered 40 percent efficient d. In accordance with the VASRD § 4.26 (Bilateral Factor (BF)) is applied when a partial disability of both arms, or both legs, or paired skeletal muscles results. The ratings of the right and left sides will be combined as described under VASRD § 4.25, and a 10 percent of the value will be added before proceeding with further combinations on converting the degree of disability.