ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 July 2019 DOCKET NUMBER: AR20170003460 APPLICANT REQUESTS: His disability separation be changed to a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: Online DD Form 293 (Application for Review of Discharge) FACTS: 1. The applicant filed within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b). 2. The applicant states he was honorably discharged with a 20 percent disability on 25 October 2015, and a 30 percent is needed to retire. Post-traumatic stress disorder (PTSD) had not been added to his records at the time of decision for his disabilities. He is requesting a review of his case and to be fully retired. 3. A review of the applicant’s service records show: a. On 15 April 2009, he enlisted in the Regular Army. b. He served in Iraq from 18 August 2009 to 30 July 2010. c. He served in Afghanistan from 22 September 2011 to 7 September 2012. d. On 20 April 2015, he submitted his Department of Veterans Affairs (VA) Form 21-0819 (VA/DOD Joint Disability Evaluation Board Claim Form) listing a total of 11 conditions, which include depression, anxiety condition, and insomnia. e. On 6 May 2015, a DVA Compensation and Pension (C&P) Exam was conducted. A review of the document shows: * he has been diagnosed with a mental disorder (adjustment disorder with mixed anxiety and depressed mood) * the examiner noted the condition is related to ongoing occupational, financial and marital problems, and summarized the applicant’s level of occupational and social 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 that are controlled by medication * he was seen for emotional concerns on 8 December 2014 when he reported stress related to work * behavioral health (BH) appointment was in March 2015 where he reported having depressed mood, insomnia, increased irritability, and had been receiving group and individual counseling f. On 26 May 2015, a Medical Evaluation Board (MEB) convened and after consideration of clinical records, laboratory findings, and physical examinations, determined: * his left patellar osteoarthritis s/p surgery, and right ankle osteoarthritis with tenosynovitis, chondromalacia, and ligamentous tears failed retention standards * his BH conditions of adjustment disorder with mixed anxiety and depressed mood met retention standards * he was referred to a Physical Evaluation Board (PEB) g. On 27 May 2015, his DA Form 3349 (Physical Profile) was approved for the left knee, right ankle, and pseudofolliculits barbae conditions. There was no BH condition profiled. h. On 28 May 2015, the Tele-Behavioral Health Clinic, Warrior Resiliency Program, Brooke Army Medical Center provided a MEB review that shows: * the applicant was referred for his left patellar osteoarthritis, and claimed the psychiatric conditions of depression, anxiety, and insomnia * review of e-profile indicated a series of 16 profiles for physical issues beginning on 19 MAY 2011, but no psychiatric profiles have been recorded * a referenced DA Form 7652 (Commander’s Performance and Functional Statement) notes interference to duty from physical issues, but no reference to BH conditions interfering with duty * he has no record of past or current medications with psychiatric indications * current BH care is for an adjustment disorder, which along with mixed anxiety and depressed mood, meet retention standards in accordance with Army Directive 2013-12 * the records do not support the presence of recurrent or extended psychiatric hospitalizations, required permanent significant limitations to duty, or significant interference to duty from a BH condition * the applicant is deemed to meet retention standards from a psychiatric perspective i. On 29 May 2015, after having been counseled, the applicant signed the MEB indicating he reviewed the contents of the MEB packet, agreed with the findings. and recommendations, and acknowledged he did not want to request an impartial provider review (IPR) of his MEB findings. j. On 26 June 2015, an informal PEB convened to determine the applicant’s fitness for continued military service. His DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows: * the Board found him unfit for his left patellar and right ankle conditions * the Board found him fit for his other MEB listed conditions * 20 percent rating and separation with severance pay * the applicant concurred with the PEB findings, waived his opportunity for a formal PEB hearing, and did not request a reconsideration of the DVA ratings j. Orders 212-0119, published by Headquarters III Corps and Fort Hood on 31 July 2015 reassigned him to the transition point for discharge processing. 3. His DD Form 214 shows he was honorably discharged in accordance with Army Regulation 635-40, and separated with severance pay due to disability. It also shows he completed 6 years, 6 months, 11 days of active service. Block 18 shows he served in Iraq and Afghanistan. 4. On 24 April 2017, the Army Review Boards Agency psychologist rendered an advisory opinion in the processing of this case. He opined: a. The applicant’s medical records do, at the time of discharge, reasonably support him having a boardable medical condition for that period, and that he did meet medical retention standards in Army Regulation (AR) 40-501 and the provisions in AR 635-40 that were applicable to his era of service. b. The applicant’s mental health conditions were considered at the time of his discharge, though he contested this based on the diagnosis of PTSD that occurred after he signed his Army disability percentages. c. Review of available documentation did find sufficient behavioral health evidence to change the applicant’s discharge to a medical retirement. 5. On 26 April 2017, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. He did not respond. 6. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. Based upon the medical advisory’s finding that a review of available documentation did find sufficient behavioral health evidence to change the applicant’s discharge to a medical retirement, the Board recommended that the applicant’s medical record be referred to the Physical Disability Agency (PDA) for review and possible referral into the IDES system. 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 having the U.S. Army Physical Disability Agency make a determination if the applicant should have been medically separation or retired under the Integrated Disability Evaluation System (IDES). If a determination is made that he applicant should have been medically separated or retired,, these proceedings will serve as the authority to void her discharge and issue her the appropriate separation retroactive to her original discharge date, with entitlement to all back pay and allowances and/or separation/retired pay, less any entitlements already received. 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 discharge 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. REFERENCES: 1. Department of Defense Instruction (DoDI) 1332.18 establishes policy, assigns responsibilities, and provides procedures for referral, evaluation, return to duty, separation, or retirement of service members for disability. a. Appendix 2 to Enclosure 3 states the standards for determining unfitness due to disability or medical disqualification. b. Paragraph 2a states a service member will be considered unfit when the evidence establishes that the member, due to disability, is unable to reasonably perform duties of his or her office, grade, rank, or rating, including those during a remaining period of Reserve obligation. c. Paragraph 2b states a service member may also be considered unfit when the evidence establishes that: * the service member’s disability represents a decided medical risk to the health of the member or to the welfare or safety of other members; or * the service member’s disability imposes unreasonable requirements on the military to maintain or protect the service member d. Paragraph 4d (Combined effect) states a service member may be determined unfit as a result of the combined effect of two or more impairments even though each of them, standing alone, would not cause the service member to be referred into the Disability Evaluation System (DES) or be found unfit because of disability. 2. Army Directive 2013-12 (Implementation of Department of Defense Policy Change Concerning Chronic Adjustment Disorder) amended DoDI 1332.38 (Physical Disability Evaluation) to be consistent with the current version of the VASRD and made “chronic adjustment disorder” a potentially compensable physical disability. The standard for medical fitness for chronic adjustment disorder was established. a. Paragraph 3 states a diagnosis of chronic adjustment disorder will cause a Soldier to be referred to a MEB when the Soldier exhibits persistent or recurring symptoms meeting the criteria detailed in the current edition of Diagnostic and Statistical Manual of Mental Disorders. The symptoms must be directly caused by exposure to an enduring stressor and must last longer than six months. b. The causes for referral to a MEB for chronic adjustment disorder are, the persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or the persistence or recurrence of symptoms that interfere with duty performance and necessitate limitations of duty or duty in a protected environment 3. Army Regulation (AR) 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement. Chapter 3 of the regulation gives the various medical conditions and physical defects which may render a Soldier unfit for further military service. 4. 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 4-17 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. ABCMR Record of Proceedings (cont) AR20170003460 2 1