ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20170000495 APPLICANT REQUESTS: * change his honorable discharge to medical retirement for Post-Traumatic Stress Disorder (PTSD) * add his Valorous Unit Award (VUA) to his DD Form 214 (Certificate of Release or Discharge from Active Duty) * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (DVA) records * Military Medical Records excerpts * Order 180-002 and Certificate for Good Conduct Medal * Physical Disability Board of Review (PDBR) proceedings 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 his military medical records clearly document he was diagnosed and treated for PTSD while still on active duty. He added the following information: * he was placed on a “dead man’s profile” which restricted him from carrying weapons and doing physical training when he was switched over to a warrior transition unit (WTU) * a psychiatrist recommended PTSD be added to the medical board, but his chain of command said the Board proceedings were too far along and to add PTSD the process would have to restart, and was told to seek help through the DVA once discharged * his mental condition was impaired during his medical board and pending discharge due to the amount of medications, stress, and severity of his PTSD, and blindly followed his command at the time * his PTSD is treatment resistant, severe, and combat related * he was immediately given a combat related diagnosis of PTSD from the DVA * he submitted an application to the PDBR stating his PTSD was not evaluated while in his active duty medical records, but the PTSD was not reviewed by the PDBR as it was outside the limitations of their review 3. A review of the applicant’s service record shows: a. The applicant enlisted into the Regular Army (RA) on 30 June 2005. b. He served with the 1st Squadron, 40th Cavalry Regiment in Iraq from 4 October 2006 to 21 November 2007. c. Department of the Army General Orders Number 2013-10 awarded his unit, 1st Squadron, 40th Cavalry Regiment the Valorous Unit Award for service from 4 October 2006 to 28 November 2007. d. On 1 April 2008, a DA Form 3349 (Physical Profile) for his back pain secondary to Scheuermann’s kyphosis was completed by the approving authority at the time. The “dead man’s profile” he indicated restricted him from carrying weapons and doing physical training when he was switched over to a WTU is not available for review. e. On 11 June 2008, a DA Form 3947 (Medical Evaluation Board Proceedings) convened and after consideration of clinical records, laboratory findings, and physical examinations, determined: * his chronic thoracic spine pain secondary to Scheuermann’s kyphosis was incurred while entitled to base pay and failed retention standards * his tension type headaches and insomnia met retention standards f. On 25 June 2008, he authenticated the DA Form 3947 with his signature acknowledging: * he was informed of the findings and recommendation of the Board * chief complaint: back pain secondary to Scheuermann’s kyphosis * he agreed with the findings and recommendation g. On 15 July 2008, an informal Physical Evaluation Board (PEB) convened to determine the applicant’s fitness for continued military service. His DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows: * the PEB found him unfit for his chronic back pain due to recurrent back strain of wearing his body armor and military maneuvers in Iraq * the Scheuermann’s kyphosis was an underlying condition that was permanently aggravated by his service * 10 percent rating and separation with severance pay * the tension headaches and insomnia were determined to be not unfitting h. On 17 July 2008, he authenticated the DA Form 199 with his signature acknowledging he concurred with the findings and waived a formal hearing in his case i. Orders 226-0177, published by the United States Army Garrison Fort Richardson (Provisional), at Fort Richardson, AK on 13 August 2008, show he was reassigned to Fort Richardson transition center for processing and discharge. His report date was 20 August 2008. j. On 16 September 2008, he was honorably discharged under the authority of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation). His DD Form 214 shows he completed 3 years, 2 months, 17 days of service. Block 28 (reason for separation) disability, severance pay, combat related. The DD Form 214 does not show information identifying his unit or mention a Valorous Unit Award. He was awarded or authorized: * Army Commendation Medal * Army Achievement Medal * Army Good Conduct medal * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal with campaign star * Overseas Service Ribbon (2nd Award) * Combat Action Badge * Parachutist Badge 4. On 23 February 2017, the ARBA psychologist rendered a medical advisory opinion in the processing of this case. He opined the applicant did not meet medical retention standards in accordance with Chapter 3, AR 40-501 (Standards of Medical Fitness), following the provisions set forth in AR 635-40 in regard to medical boards that were applicable to the applicant’s era of service, which is why he was discharged. The applicant’s mental health conditions were considered at the time of his discharge, and had numerous contact with mental health. Review of available documentation did not discover evidence of a mental health consideration that justify changing the applicant’s discharge to a medical retirement. 5. On 27 February 2017, the advisory opinion was forwarded to the applicant for acknowledgment and/or response. On 10 March 2017, the applicant submitted a 3 page rebuttal in response to the advisory opinion where he states: a. The medical advisor stated there were 4 visits for PTSD in July 2008 and PTSD was not the principal target, but failed to mention additional appointments in August 2008 seeing a psychiatric nurse practitioner. The advisor contradicts himself stating 4 visits for PTSD, but later states numerous contact with mental health. His medical records show PTSD was his chief complaint in August, but the advisor failed to document the medication treatments for panic attacks and PTSD, as well as for pain and insomnia. PTSD appeared on the problem list but was not always the target of treatment, and it remained on the list because the Army’s failure to consistently address the problem. b. The advisor found no evidence of functional impairments due to PTSD even though he was placed in the WTU with a “dead man’s profile” restricting him from weapons and physical training, and which hindered him from his Army performance and was no longer deployable. The advisor admits PTSD was diagnosed and evidence shows a steady worsening, but has difficulty understanding why the diagnosis was made due to vagueness of medical notes by treating physicians, and records failed to spell out the trauma or time of onset of symptoms. c. His mental condition was impaired due to medications, stress, and severity of the PTSD during his medical board, and does not believe he was mentally competent of understanding the nature of and cooperating in PEB proceedings, and he was in no mental state to advocate for himself, schedule more appointments, and stay in service for another year. The psychiatrist recommended PTSD be added to the medical board (IAW AR 40-501), but the chain of command told him to seek help from the DVA once discharged, and adding PTSD would require him to restart the process. Due to his mental state at the time he blindly followed the command, and feels what happened is an injustice and grossly negligent of the command to advise him to get help through the DVA, and not advise him to restart the medical board process. He provided excerpts from the following: (1) AR 635-40, Paragraph 4-11 (Narrative summary) that shows the narrative summary (NARSUM) to be the MEB is the heart of the disability evaluation system. Incomplete, inaccurate, misleading, or delayed NARSUMs may result in injustice to the Soldier or to the Army. When a Soldier is diagnosed with a mental disorder, the NARSUM must include a statement indicating whether the Soldier is mentally competent for pay purposes and capable of understanding the nature of, and cooperating in, PEB proceedings. (2) AR 40-501, Paragraph 3-32 (Mood disorders) and Paragraph 3-33 (Anxiety, somatoform or dissociative disorders) that shows the causes for referral to an MEB are persistence or recurrence of sufficient symptoms to require extended or recurrent hospitalization; or persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or persistence or recurrence of symptoms resulting in interference with effective military performance. 8. 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. 9. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement. Chapter 3 of the regulation provides the various medical conditions and physical defects which may render a Soldier unfit for further military service. 10. By regulation, the Valorous Unit Award (VUA) may be awarded to units for extraordinary heroism in action against an armed enemy while engaged in military operations involving conflict. 11. AR 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The separation document provides the individual with documentary evidence of his or her military service, and is a summary of a Soldier’s most recent period of continuous active duty. 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. 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 partial relief was warranted. The applicant’s contentions, medical concerns, the medical advisory opinion and his rebuttal were carefully considered. His record shows he was diagnosed and treated for behavioral-health concerns prior to and during the PDES process. The PEB determined he had medical conditions that rendered him unfit for military service; however, PTSD was not one of the unfitting conditions. Based upon the preponderance of evidence, the Board agreed his PTSD during military service was not diagnosed so severe that it would have been an unfitting condition. Therefore, the Board determined there is insufficient evidence to grant relief by adding a disability percentage for PTSD. However, the Board did note the administrative note below by the analyst of record that the requested VUA is supported by the available documentary evidence in the record; therefore the Board recommended granting that portion of the request. 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 Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 by adding the Valorous Unit Award. 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 changing the narrative reason for separation to a medical retirement. 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): A review of the applicant’s service records shows he is entitled to awards not listed on his DD Form 214. As a result, amend his DD Form 214 to show the Valorous Unit Award. REFERENCES: 1. Army Regulation (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. c. Paragraph 4-11b states in describing a Soldier’s conditions, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service. The history of the Soldier’s illness, objective findings on examination, results of x-ray and laboratory tests, reports of consultations, response to therapy, and subjective conclusions with rationale must be addressed. d. 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/recommendations to establish a Soldier's eligibility to be separated or retired because of physical disability. e. 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. 2. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement. Chapter 3 of the regulation provides the various medical conditions and physical defects which may render a Soldier unfit for further military service. 3. AR 600-8-22 (Military Awards) provides Army policy, criteria and administrative instructions concerning unit decorations, trophies, and similar devices awarded in recognition of accomplishments. It states for award of the Valorous Unit Award, the unit must have performed with marked distinction under difficult and hazardous conditions in accomplishing its mission so as to set itself apart from and above other units participating in the same conflict. 4. AR 635-8 (Separation Processing and Documents) governs the preparation of the DD Form 214. * Listing of all federally recognized awards and decorations for all periods of service are reflected in block 13 (Decorations Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) * Prepare a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) is prepared in response to a request for a Soldier or Veteran to correct a previously issued Army DD Form 214 * Requests should contain a copy of the DD Form 214 in question and source documents that substantiate the request * On direction of the Army Board of Correction of Military Records (ABCMR) or Army Discharge Review Board (ADRB), the Deputy Assistant Secretary of the Army, Army Review Boards Agency (ARBA) is authorized to issue or reissue DD Forms 214 and DD Forms 215 5. AR 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The separation document provides the individual with documentary evidence of his or her military service, and is a summary of a Soldier’s most recent period of continuous active duty. The DD Form 214 provides a brief, clear-cut record of active duty service at the time of the Soldier’s release from active duty, retirement or discharge. Chapter 2 states: * List awards and decorations for all periods of service in priority sequence specified in AR 600-8-22 * Each entry will be verified by the Soldier’s records 6. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170000495 6 1