ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 October 2019 DOCKET NUMBER: AR20170001364 APPLICANT REQUESTS: correction of his military records to show he was medically boarded and retired due to disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 3349 (Physical Profile), 21 October 2011 * Medical Records * Department of Veterans Affairs (VA) Letter, 19 December 2013 * VA Letter, 29 September 2014 * Statement from Retired (Ret) First Lieutenant (1LT) X__ X__, 30 January 2016 * Self-Authored Statement * Memorandum for Record (MFR) Excusal from Weapons Qualification * Line of Duty Investigation Memorandum * Warrior Transition Command Packet * DD Form 214 (Certificate of Release or Discharge from Active Duty) - 3 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 on 8 May 2016, he was maliciously and unscrupulously, improperly discharged from the U.S. Army Reserves while suffering from myriad service-connected combat related medical afflictions. His unit knew fully well the scope and complexity of his service connected ailments and purposely allowed his transfer to the Wounded Warrior Program expire. He was suffering from chronic post-traumatic stress disorder (PTSD) that he sustained as a result of his deployment to Iraq during the 2009-2010 timeframe. During his time in Iraq, he served in the most dangerous, austere, and deadly places, under the most wretched of conditions. When he was medevac’d (medically evacuated) out of Iraq he returned to his home station in 2010, he was suffering from PTSD. His pleas to his chain of command were always ignored/downplayed. On November 2013, it got so bad that he had to be hospitalized for PTSD and major depressive disorder (MDD). 3. The applicant provides: a. His medical records, dated 2 November 2013, which show he was admitted at "psych ward" for having thoughts of suicide and feeling depressed. He was discharged home with a diagnosis of bipolar disorder, not otherwise specified (NOS). He was subsequently scheduled for follow-up at the Mental Health Clinic, and he was provided a suicide safety plan. b. Letter from the VA readjustment counseling therapist, dated 19 December 2013, which states X__ X__ had seen the applicant 3 times during the current year. Sessions were scheduled for every other week. Applicant was unemployed and actively involved in job search as well as in treatments. He was diagnosed with initial and middle insomnia as well as wartime related nightmares. He was also diagnosed with sleep apnea. The therapist stated that applicant had reported pending assessment of possible sequellae to two traumatic brain injuries, concussions without loss consciousness following exposure to improvised explosive device (IED) explosions. Applicant also reported difficulty with emotional regulation taking form of irritability, hyper reactivity to frustrations of everyday life. c. Statement from VA Medical Center, Doctor of Nursing Practice, dated 29 September 2014, which stated the applicant was diagnosed with PTSD. His treatment would consist of medication and weekly cognitive behavioral psychotherapy for a period of 3 months with ongoing follow up psychotherapy recommended as needed. d. Statement from Ret, 1LT X__ X__ who served side by side with the applicant in the Army for over 10 years and is a friend and confidant. He states: (1) They worked in the Transportation & Logistics at Joint Force Headquarters District of Columbia National Guard. They provided care, custody, control and physical security of personnel and equipment assets at garrison and hostile combat environments in Southeast Asia theater of war during the 2003-2004 timeframe. He stated the applicant was well received and highly respected junior enlisted who was clearly a valued personnel asset and natural leader among his service members. At the beginning he was mission focused, enthusiastic, exceptionally high level of spirit de corps and exemplary model of tactical effectiveness. Overtime, however he observed the applicant’s continued dedication in sacrifice, repeated operational taskers, and countless demonstrations of selflessness to include an arduous and bloody deployment in Iraq 2003-2004 had taken a toll on him. (2) In New Year’s holiday in 2013, the applicant shared with him that he was feeling deeply troubled about a series of incidents involving PTSD that he had been experiencing since his return from his deployment to Iraq that was imperiling his ability to keep his job. The applicant further confided that he was dealing with issues of severe depression, sleeplessness, headaches and nightmares from his time in combat. At this time he was bedridden and overwhelmed with massive headaches which among other things was causing him pain and discomfort, as well as light-headedness and fatigue during work hours to the point of being mission non-capable. It was at this time that the applicant confided in him that he strongly felt his illness was going to cause him his livelihood and ability to sustain employment. He shared with him that he had been warned by his chain of command that he would lose his job if he had PTSD—so he had resigned himself to trying to privately live with the debilitating effects of his mental illness and other service-connected ailments. The applicant experienced 6 IED attacks and was later medevac’d from the combat zone for service-connected medical reason. He feels this Soldier was allowed in many ways to slip through the cracks with regard to the idea of taking care of Soldiers. In his opinion, he was completely failed by his chain of command after he returned home from combat. He later became aware that instead of receiving a medical discharge at separation from medical hold, the applicant was allowed to continue to serve in the U.S. Army Reserves and to have access to weapons at a time when he was still being treated for his myriad PTSD chronic related service connected disabling injuries (see detailed 1LT X__ X__ statement in packet). e. Self-authored statement which states: (1) He has consistently struggled mightily with issues related to his combat sustained/service connected PTSD since the time of his wartime deployment to Iraq in the 2003-2004 timeframe. (2) In 2013 his PTSD symptoms spiked and became progressively worse. 2013, he was admitted to the emergency room at Walter Reed National Military Medical Center in Bethesda, MD for his struggles with PTSD. At that time, a Medical Retention Processing 2/Active Duty Medical Extension (MRP2)/ADME packet was initiated on his behalf by his military chain of command, however due to administrative inefficiencies— he was never allowed to get properly in-processed into the Wounded Warrior Battalion to get the clinical aid that he needed and deserved. (3) In the time the months that followed his initial hospitalization for PTSD in 2013, he languished and struggled. He was honest and forthcoming about this disabling mental Illness with his chain of command. He feared his service-connected mental illness would push him over the edge and out of the military. (4) Since the time of his initial hospitalization for PTSD and Major Depressive Disorder, his situation only got progressively worse, and he was fearing daily for his life. He now receives almost 24-hour support and care for his service-connected, PTSD related daily living challenges. He is currently even contemplating applying to the VA Caregiver Support Program. (5) His chain of command was fully aware of his health & welfare situation for the entirety of the long and arduous 24 months since he first went to the emergency room at Walter Reed Bethesda for his life-threatening issues with PTSD until the time of his separation from service in May 2016 timeframe. He was clearly failed by his "chain of command" in this matter. (6) Perhaps even more distressing for him as a proud and conscientious professional soldier—He knows that he suffered from clinically documented side effects of the prescription medications he was taking for his service-connected medical issues. (7) His MRP2/ADME (Medical Retention Processing 2/Active Duty Medical Extension) packet to be admitted to a Warrior Transition Unit had been delayed/stymied for over 22 months. On November 2, 2013, he spent 10 days on detainment under medical care at the mental health wards of both Walter Reed Bethesda and the Washington DC VA Hospital. A line of duty was eventually completed by his unit for him. He submitted to a clinical regimen of ingesting prescribed psychotropic medications. (8) It is with a tremendous sense of anguish and exasperation that he now expresses that he feels like he has been "jerked-around" with regard to his health situation and his military career -· as nearly 24 months went by and he was never admitted to the Warrior Transition Unit to receive the care he needed. He was then separated from service. (9) Since his U.S. Army Reserve unit is based in Scranton, PA, which is 4 hours away from where he lives, he feels like when it came to him and his personal health situation -- It became a classic case of "out of sight, out of mind." He was asking them for administrative relief. However, he never got the care that he needed. He does not know what else to do or who else to contact even though he went through his chain of command (see detailed self- authored statement in packet) f. Memorandum For Record, dated 26 June 2015, which shows his commander excused him from weapons qualification for the M-16 while his issues were resolved through entry into the Warrior Transition Unit (WTU) or a medical review board determined if he was fit for duty. g. Memorandum from 80th Regiment, 3rd Battalion Support Command (SC), dated 2 September 2015, which states his line of duty investigation was reviewed for completeness, finding of “YES” would be filed in his medical and personnel file. h. Warrior Transition Command request packet, undated, which shows the applicant requested to be medically boarded for PTSD suffered during his deployment period of 2009-2010. i. His DA Form 3349 (Physical Profile), dated 21 October 2011, Block 8 (Functional Limitations and Capabilities and other Comments) shows sleep apnea, hypertension, chronic right ankle and states he met retention standards, returned to duty. He had a permanent profile. j. His DA Form 2173 (Statement of Medical Examination and Duty Status) shows he was admitted to Walter Reed Military Medical Center on 2 November 2013, for suicidal ideation he was thinking of jumping off bay bridge. Block 30 (Details of Accident –Remarks) states Soldier was coping with PTSD due to several consecutive deployments to include 6 IED attacks, most recent being in 2009. Soldier checked into emergency room on 2 November 2013. Block 32 (Injury is Considered to Have Been Incurred in the Line of Duty) Yes. k. His DD Form 214 (Certificate of Release or Discharge from Active Duty) member copy, shows he was relieved from active duty honorably for the period covering 28 September 1983 to 31 July 1986. He completed 2 years, 10 months, and 4 days of net active service. l. His DD Form 214 for period covering 8 March 2003 to 17 September 2004, shows he completed 2 years, 10 months and 3 days of prior active service and 9 months, and 22 days foreign service. Item 18 (Remarks) shows DD Form 215 (Correction to DD Form 214) will be issued to provide missing information that does not account for annual and or weekend training on Item 12d (Total Prior Inactive Service); active duty in support of Operation Enduring Freedom, service in Kuwait from 10 April 2003 to 1 February 2004, served in a designated imminent danger pay area. Items 19 to 30 were cut off from the scan. m. His DD Form 214 for period covering 9 January 2009 to 8 January 2010 shows he was released from active duty and transferred to the U.S. Army Reserve Information Operations Center. He completed 4 years, 3 months, and 24 days prior active service and 20 years, 11 months and 17 days of prior inactive service; 9 months and 22 days foreign service. Item 18 (Remarks) service in Iraq 10 April 2003 to 1 February 2004. 4. A review of the applicant’s service records shows: a. Having had previous service in the Army National Guard (ARNG), he enlisted in the Regular Army (RA) on 28 September 1983. He was separated on 31 July 1986. b. After a break in service he enlisted on 24 July 2001 in the Virginia ARNG and as a private first class for a period of 1 year. c. His DD Form 2808 (Report of Medical Examination) conducted for the purpose of retention, dated 27 June 2007, shows in Block 44 (Notes) he had minimal tympanic membrane movement and Block 73 (Notes) shows he had an abnormal electrocardiogram. d. His DD Form 2807 (Report of Medical History), dated 27 June 2007, shows in Block 30a (Comments) responses to questions: 12f – right ankle pain worse with activity, 16f – high blood pressure diet controlled, 17d – sleep apnea used dental appliance occasionally. He denied having any other nervous trouble (anxiety or panic attacks). He checked “NO” on the blocks for: depression or excessive worry, received counseling of any type, evaluated for a mental condition, and attempted suicide. e. His DA Form 3349 (Physical Profile) dated 13 August 2007, shows he had a permanent profile for chronic right ankle sprain. On 27 August 2007, Feds Heal determined that service member was physically fit for retention under provisions of Army Regulation (AR) 40-501 (Standards of Medical Fitness). f. Orders Number 08-031 -00001, dated 31 January 2008, shows he was promoted to sergeant/E-5, effective on 2 December 2007, in the military occupational specialty (MOS) 25B (Information Technology Specialist). g. :Orders Number 08-343-00002, dated 8 December 2008 reassigned him to the USAR Information Operations Center Detachment 42 at Adelphi, MD effective 8 December 2008. h. His DA Form 2166-8 (Noncommissioned Officer Evaluation Report) (NCOER) shows for the period covering: (1) Rating period 2 December 2007 through 1 December 2008, the rater rates him “success” on all blocks and “fully capable”. He comments applicant knows how to handle stress worked extremely well under pressure; the senior rater rates him “successful” in overall performance and “superior” in overall potential and recommends promotion to staff sergeant (SSG) at earliest opportunity. Applicant passes Army Physical Fitness Test (APFT) and height and weight. (2) Rating period 2 December 2009 through 1 December 2010, the rater rates him “success” on all blocks and “fully capable”. He comments applicant did not take the APFT and is scheduled to take it on 11 January 2011, he also states the applicant displayed a positive attitude and remained calm and poised under pressure; the senior rater rates him “successful” in overall performance and “superior” in overall potential and recommends promotion to SSG when eligible. Applicant does not pass APFT but passes the height and weight. (3) Rating period 27 May 2011 through 26 May 2012, the rater rates him “success” on all blocks and “fully capable”. All of the rater comments were positive, the senior rater rates him “successful” in overall performance and “superior” in overall potential and recommends promotion with peers. Applicant passes APFT and the height and weight. (4) Rating period 27 May 2013 through 26 May 2014, the rater rates him “needs improvement” on Part IV Block C (Physical Fitness & Military Bearing) he comments that applicant failed APFT, height and weight but is making progress to meet standards, he also stated the applicant displays excellent mental agility is able to think through any dilemma. The senior rater rates him “successful” and promote with peers. i. VA letter dated 10 July 2009, shows the rating decision for his claim submitted on 12 August 2008. Obstructive sleep apnea 30%, hypertension 0%, his compensation payment remained unchanged by this decision. i. Orders Number 11-117-00004, dated 27 April 2011, reassigned him to the 80th Regiment, 3rd Battalion Support Command in Barre, PA effective 27 May 2011. Additionally, Orders Number 12-279-00010, dated 5 October 2012, awarded MOS identifier for instructor effective 31 August 2012. k. Three DD Form 214’s shows his active duty service: (1) Period 28 September 1983 to 31 July 1986, he was honorably released from active duty for expiration of term of service, he completed 2 years, 10 months and 4 days of active service. (2) Period 8 March 2003 to 17 September 2004, he completed 9 months, 22 days foreign service, 17 years, 6 months, and 27 days prior inactive service Item 18 -(Remarks) Operation Enduring Freedom from 10 April 2003 to 1 February 2004, served in a designated imminent danger pay area. Member copy does not show items 23-30. (3) Period 9 January 2009 to 8 January 2010, he completed 1 year service this period; 4 years, 3 months, and 24 days prior active service; 20 years, 11 months and 17 days inactive service; Item 18 – service in Iraq 10 April 2010 to 1 February 2004. Member copy does not show items 23-30. l. Orders Number 16-218-00008, issued by Headquarters, 99th Regional Support Command, dated 5 August 2016 honorably discharged him from the USAR effective 5 August 2016. 5. On 17 April 2017, the Army Review Boards Agency (ARBA) medical advisor/psychologist rendered an advisory opinion and opined: a. Based on the available records, the advisory official could not find no evidence that applicant was ever close to reaching a mandatory medical decision point that would have required referral for a Medical Evaluation Board (MEB). b. The applicant did meet medical retention standards in accordance (IAW), Chapter 3 Army Regulation (AR) 40-501, (Medical Fitness Standards for Retention and Separation, Including Retirement), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. c. The applicant’s mental-health conditions were considered at the time of his discharge from the Army. d. A review of the available documentation did discover sufficient evidence of a mental-health considerations that support a medical retirement. 6. On April 21 2017, the applicant was provided a copy of the advisory opinion and given the opportunity to provide a rebuttal, he responded on 15 May 2017, by pointing out respectfully that he disagreed and offered his feedback (see detailed applicant response in packet). 7. On 7 June 2017, the Case Management Division requested a second medical review to address whether the available record reasonably supports PTSD, or another boardable behavioral health condition(s) existed at the time of the applicant’s military service (see detailed request in packet). 8. On 28 June 2019, the ARBA medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion and opined: a. Based on a thorough review of available records, the applicant met medical retention standards at the time of separation per AR 40-501 chapter 3, paragraph 31-37. From deployment through his separation in 2016 the applicant’s NCOERs, academic performance, and awards indicate no psychiatric impairment impacting his ability to perform in his MOS. b. Likewise, he was able to maintain a top secret security clearance and managed the demands of working for a federal contract in intelligence while also engaging in reservist activities when not activated. c. Medically, the applicant did not have a psychiatric condition that by itself rendered him unfit. Although hospitalized in 2013 he did not engage in treatment, require additional hospitalizations, or have reoccurring duty limitations; he was stable. Even if stability was due to medication compliance, being on medication alone is not considered unfitting. The applicant maintained an S1 profile, only changing it to S3 in 2014 to allow for WTU entry. d. Ultimately, the applicant was released by the WTU Medical Review Board as psychiatrically stable an fit for duty. e. The applicant met medical retention standards at the time of separation. 9. On 5 July 2019, the applicant was provided with a copy of the advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 10. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. 11. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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 condition or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting separation for disability. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Board members noted that the applicant’s case has been reviewed by a medical doctor who determined that based on the available documents, consistent with the medical provider’s findings, there is no evidence that applicant was ever close to reaching a mandatory medical decision point that would have required referral for a MEB. He met medical retention standards IAW AR 40-501 and those standards in AR 635-40. Based upon those findings of the medical professional, the Board concluded there was insufficient evidence to show an error or injustice which would warrant making a change to the applicant’s military record. 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. 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 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. 3. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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 condition or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting separation for disability. 4. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities, which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have 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. As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. 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. 5. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. ABCMR Record of Proceedings (cont) AR20170001364 11 1