ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 June 2019 DOCKET NUMBER: AR20170001609 APPLICANT REQUESTS: physical disability retirement in lieu of honorable discharge due to unqualified resignation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter * DD Form 214 (Certificate of Release or Discharge from Active Duty) * partial Department of Veterans Affairs (VA) Rating Decision, dated 1 January 2015 * VA letter, dated 19 November 2015 FACTS: 1. The applicant states: a. As a pilot in the U.S. Army, there is a great stigma and fear in stating you have a problem and need help. Fear of losing flight status and shaming yourself before your subordinates, peers, and supervisors is great. b. He left the Army knowing he had both physical and psychological problems that needed to be addressed. Immediately following his Army discharge he was initially rated as 80 percent disabled from the VA and later given a permanent disability rating of 100 percent for post-traumatic stress disorder (PTSD). c. Through resources at the VA he was made aware of medical discharges and medical retirements from the Army for conditions that mirrored his own, which is something he was unaware of prior to leaving the Army. Therefore, he requests amendment of his DD Form 214 to reflect the reason he left the Army. 2. The applicant enlisted in the Regular Army on 10 April 2001 and was awarded the military occupational specialty 11B (Infantryman). 3. He served in Bosnia from 23 January 2002 through 23 April 2002, Iraq from 27 March 2003 through 22 August 2003, and again in Iraq from 21 February 2004 through 28 April 2004. Among his decorations and badges awarded during these periods were the Meritorious Unit Commendation, Combat Infantryman Badge, Expert Infantryman Badge, Parachutist Combat Badge with bronze service star, and Parachutist Badge. 4. He was honorably discharged on 23 July 2007, after 6 years, 3 months, and 14 days of net active service this period in order to accept an appointment as a Warrant Officer in the Army. On 24 July 2007, he was appointed as a Reserve Warrant Officer of the Army and served in the primary specialty of Chinook Pilot. 5. He served in Afghanistan from 15 November 2009 through 18 November 2010. 6. A DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation Report), covering the period 12 January 2014 through 4 June 2014, states he excelled in his duties, maintained technical expertise and flying in harsh environmental conditions without accident or incident with unquestionable dedication to the mission. His Senior Rater commented that the applicant’s potential was unlimited; he was a must select for promotion to Chief Warrant Officer Three; and he should continue to be placed in the most demanding assignments. 7. The complete facts and circumstances surrounding the applicant’s discharge are unknown as his request for unqualified resignation and its approval are not in his available records for review. His DD Form 214 shows he was honorably discharged under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-5 (Unqualified Resignations), for miscellaneous/general reasons after 7 years, 5 months, and 7 days of net active duty this period. 8. His available service records do not show: * he was issued a permanent physical profile rating * he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 9. The applicant provided a partial VA Rating Decision, which shows he was granted the following service-connected disability ratings effective 1 January 2015: * obstructive sleep apnea, 50 percent * right shoulder strain, 10 percent * left shoulder strain, 10 percent * right ankle fracture, 10 percent * left knee strain, 10 percent * left ear hearing loss, 10 percent * tinnitus, 10 percent * hemorrhoids, 0 percent * cervical strain, 10 percent * right knee strain, 10 percent * PTSD and major depressive disorder, 70 percent 10. A letter from the VA, dated 19 November 2015, shows the applicant’s combined service connected evaluation was 100 percent and he was considered to be totally and permanently disable due solely to his service-connected disabilities. 11. On 25 April 2017, the Army Review Boards Agency (ARBA) medical advisor/psychologist provided an advisory opinion. It states the applicant met mental health retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). His medical records at the time of his discharge do not reasonably support him having had a boardable mental health condition requiring a referral for an MEB. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. The applicant was provided a copy of the advisory opinion on 26 April 2017 and given an opportunity to submit comments. He responded on 14 June 2017, stating: a. He does have records indicating that PTSD was present and clearly, persistently interfering with the effective performance of his military duties and caused him to fail medical retention standards. Those records include his Veterans Center appointment log, Flight Log, and a letter from a forensic psychologist, Dr. A____ L____, all of which he enclosed for review. b. These documents are evidence he was suffering from the effects of PTSD before his departure from the Army. The Veteran Center Log shows he sought help outside of the military prior to 31 December 2014, as a way to seek help but not be stigmatized by his supervisors and peers. The Flight Log verifies a significant decrease in flight time because of an inability to fly due to the symptoms he was dealing with. Finally, the letter from Dr. A____ L____ provides a professional assessment of the applicant’s situation. c. His persistent and recurring symptoms resulted in an interference with his effective military performance, rendering him unfit for military service and flying duty per Army Regulation 40-501. 13. The RCS Client Information Record he provided, dated 3 May 2017, shows he received the following counseling: * group counseling on 18 December 2014 regarding employment, benefits, basic needs, medical, legal, homelessness, and “other” * individual counseling on 4 occasions between 18 December 2014 and 19 December 2014 for “other” reasons * individual counseling for PTSD on 12 occasions between 6 January 2015 and 30 April 2015 14. The form the applicant refers to as his flight log is largely illegible and difficult to decipher. The document shows roughly 130 documented entries under the heading “Flight Date” between 3 March 2011 and 18 September 2014, presumably flights carried out by the applicant in his capacity as a pilot, 41 of which occurred in the year 2014. 15. Dr. A____ L____, Clinical Psychologist, provided a letter dated 12 June 2017, states, in pertinent part: a. He wrote the evaluation letter in support of the applicant’s request to amend his honorable discharge due to unqualified resignation to instead show physical disability retirement. b. After numerous combat deployments as both an enlisted man and a warrant officer aviator on active duty, he began to exhibit severe symptoms associated with PTSD, which he was afraid of divulging. As with many individuals who attempt to cope with the symptoms of PTSD, the applicant did not understand that what he was experiencing was, in fact, PTSD. He was aware of his shifting mood and behavior, but did not report it out of fear the admission of these issues would negatively affect him. He intentionally chose his last assignment at Fort Irwin, CA, knowing he would be in a non-deployable billet there. c. While at Fort Irwin, CA, he adjusted his behavior as a result of his PTSD symptoms by reducing the amount of hours he flew, as he feared his symptoms would cause him to be less able to concentrate and possibly cause an accident. He was able to cover up the reasons for this reduced flight time due to his duty position as the operations officer and the executive officer. He reduced his flying time from approximately 16 days (24 hours) in August 2013 to 2 days (roughly 4 hours) by July 2014. This dramatic reduction was entirely as a result of his encroaching fear and escalating symptoms. d. His PTSD symptoms led to his divorce from his first wife and it was his second wife who urged him to finally seek help in the form of psychotherapy from the local Veterans Center in Temecula, CA, while still on active duty. On his Report of Medical Assessment, dated 12 September 2014, he annotated “yes” to the question, “Have you suffered from any injury or illness while on active duty for which you did not seek medical care?” and he wrote “PTSD” as his explanation of the annotation. e. He was ultimately diagnosed with PTSD, panic disorder, and major depressive disorder and granted a 100 percent service-connected disability by the VA. His multiple deployments included the following incidents, which all emotionally affected him: a hard parachute landing and being shot at in Kosovo, experiencing active combat as an Airborne Infantryman, having his truck hit by a rocket propelled grenade, and serving as a pilot during deployment to Afghanistan. These incidents, among others, caused him to experience symptoms related to PTSD, anxiety and depression, which he told no one about, fearing he would be removed from flight duty, passed over for promotion, and possibly labeled as mentally ill. f. Looking back on his experiences, he says he was always on the edge of a meltdown and worried it would eventually catch up to him. Now that he is out of the Army and somewhat stable in his marriage and his fatherhood, he is a good candidate for psychotherapy. Medical retirement is mainly intended for a service member whose career was cut short because of a disability causing him/her to be unfit for military service. In this case, the Army believes the applicant’s disability began after his discharge, when the applicant contends these symptoms began significantly before his discharge and after his first deployments, which the doctor agrees with after several sessions with the applicant. He did not leave the Army because he wanted to, but rather to prevent his mental conditions from worsening. 16. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. 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. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 17. Army Regulation 635-40 establishes the Army Disability Evaluation System 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 conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 18. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 19. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the 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. These two government agencies operate under different policies. 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the medical advisory opinion and published DoD guidance for discharge upgrade requests. The Board discussed the circumstances of the applicant’s resignation, his statement regarding his PTSD diagnosis and other medical conditions and the conclusions of the advising official regarding his conditions at the time of separation. The Board determined that while the applicant has VA identified disabilities, there is no evidence of a permanent profile, a condition that prevented him from performing his duties or warranted referral to the disability evaluation system during his time in service. As a result, the Board concurs with the advisory and determined that no correction is necessary. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing the transfer and discharge of Army officer personnel. Paragraph 3-5 provides specific guidance on the processing of officer unqualified resignations. Any officer on active duty for more than 90 calendar days may tender a resignation under this paragraph except when action is pending that could result in resignation for the good of the service, the officer is under a suspension of favorable action, pending investigation, under charges, or any other unfavorable or derogatory action is pending. An officer who submits an unqualified resignation which is accepted by the U.S. Army Human Resources Command will receive an honorable discharge or a general discharge under honorable conditions. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. 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. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 establishes the Army Disability Evaluation System 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 conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 4. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 5. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the 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. These two government agencies operate under different policies. 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. ABCMR Record of Proceedings (cont) AR20170001609 8 1