IN THE CASE OF: BOARD DATE: 21 May 2020 DOCKET NUMBER: AR20170001837 APPLICANT REQUESTS: his honorable discharge (HD) be change to a medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review if Discharge from the Armed Forces of the United States) * Police reports * Medical document FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR 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 in part, dating back to 2004, he sought mental healthcare for symptoms pertaining to PTSD. His condition got worse but he wasn't given any treatment. He could no longer function without proper mental health intervention. He had numerous life threatening episodes which placed himself and his family in harm's way. 3. The applicant served in Iraq from 26 July 2008 to 16 October 2009. 4. On 27 March 2013, the applicant was honorably discharged in the rank of sergeant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 4, for completion of required active service. 5. The applicant’s medical records were not available for review and there is no evidence in the available personnel records which shows the applicant was diagnosed with any mental or medical condition prior to his discharge. 6. There is no evidence in the applicant's service records which shows he made a written request for a separation physical examination prior to his discharge. 7. The applicant provides a police report dated 11 December 2012, which shows his mother called the police due to him experiencing a post-traumatic stress disorder PTSD episode. His mother informed police officers the applicant was a veteran of both the Iraq War and the Afghanistan War. She stated the applicant began yelling at her that someone was coming through the door to get her. He frantically yelled for her to get down, because "they were going to get her.” She was not sure if he was serious or kidding with her, so she did as she was told, and went to a back room. The applicant then yelled that "they" were coming through the interior garage door, and opened fire on the door with a semi-automatic pistol and a revolver. No one was injured during the incident and the applicant was transported for mental evaluation. 8. The applicant also provides a partial treatment note, dated 11 December 2012, from his evaluation subsequent to the above incident. The note states in part: He reports that he does not know exactly why he fired 9-10 shots with his 9mm Beretta. He thought his mother said that someone was trying to break into the house so he grabbed the gun and started shooting. Pt admits he drank two 12oz beers prior to incident, denies that he was drunk at the time. He drinks once or twice a week 3-4 beers at a time. He believes that this is mainly a reflexive behavior for him. Pt is currently an active duty soldier stationed in San Antonio. Pt has been in the military since age 17, served in Iraq, Afghanistan, Germany, came back to the States to be guardian/co-care taker for brother who was also in military at the time diagnosed with cancer. Pt has combat experience and has history of PTSD for which he has received counseling but never seen psychiatrist or prescribed medication. 9. On 30 January 2020, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The advisory found the available records indicates the applicant met medical retention standards. It is acknowledged Department of Veterans Affairs (VA) has determined he has a service connected disability rating of 100% for PTSD. This determination alone, however, does not automatically mean that military medical disability/retirement is warranted. It is important to understand VA operates under different rules, laws, and regulations when assigning disability percentages than the Department of Defense (DoD). In essence, VA will compensate for all disabilities felt to be unsuiting. The DoD does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting. In addition, the role of compensating for post-separation progression or complications of service-connected conditions was granted by Congress to VA and is not a function or role of the DoD. In summary, the applicant's behavioral health condition met medical retention standards at the time of separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 10. In response to the advisory opinion, the applicant submits a 16 page rebuttal and states, in effect, the advisory opinion is based erroneous and factually incorrect data. The basis of the advisory is based on the lack of supporting documentation for PTSD, unavailable or insufficient supporting documentation for PTSD, and the false appearance he met retention standards. Licensed and practicing mental health professionals must have the knowledge and experience necessary to accurately and appropriately diagnose a patient. The record reflects the Army's mental health professionals failed to acutely diagnose him following a head injury as early as 2004. He does not have access to his in-theater medical records documenting the numerous times he was injured due to improvised explosive devices; however, documentation can be found in VA letter declaring him 100 percent disabled. The applicant's complete rebuttal is available for the board's review and consideration. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 4, in effect at the time, provided, in pertinent part, for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training. This regulation also stated, in pertinent part, that medical examinations were required for members separated per paragraphs 5-3 or 16-4 and chapters 8, 9, 12, or 13. Medical examinations under any other provision of this regulation were not required, but could be requested by members in writing. 12. 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. 13. 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service to include deployment, the police report he provided, the reason for his separation and his post-service VA determined 100% service-connected disability rating. The Board considered the review on conclusions of the medical advising official and the response from the applicant. The Board acknowledged his available in-service records and the applicant’s statement, but found insufficient evidence to show the applicant had a medical condition(s) that failed medical retention standards prior to his separation. Based on a preponderance of evidence, the Board determined that the reason for the applicant’s separation was not in error or unjust. 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 :XXX :XXX :XXX 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 4, in effect at the time, provided, in pertinent part, for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training. This regulation also stated, in pertinent part, that medical examinations were required for members separated per paragraphs 5-3 or 16-4 and chapters 8, 9, 12, or 13. Medical examinations under any other provision of this regulation were not required, but could be requested by members in writing. 2. Army Regulation 635-40 establishes 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 conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting separation for disability. a. The disability system assessment process involves two distinct stages: the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his or 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 are either 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 retirement payments and have access to all other benefits afforded to military retirees. 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. 3. 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. Once a determination of physical unfitness is made, the PEB rates all disabilities. The VA Schedule for Rating Disabilities is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 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 at less than 30 percent. 5. 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. 6. 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. 7. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001837 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1