ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20170004325 APPLICANT REQUESTS: To have PTSD added to his medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application For The Review Of Discharge Or Dismissal from The Armed Forces Of The United States) * Physical Evaluation Board (PEB) Proceedings, dated 30 June 2008 * Department of Veterans Affairs (VA) letter, dated 9 November 2008 * VA letter, dated 10 February 2017 * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 effective 25 March 2009, he received a PTSD percentage assignment of 50% by the VA. This covers PTSD associated with panic attacks, major depressive disorder, anxiety with depression, speech with memory and nervous system problems. Living with PTS has been very difficult for him and his family. As hard as it is for him, he explains one of many situations that haunt him. Christmas Eve 1990, during the Kuwait Liberation, he was at "Direct Level Delta." His unit was assigned to secure area support base at LBA-Alfa (Logistical base Alpha). Suddenly a possible terrorist breached the perimeter. A high-speed chase ensued. He was responsible for driving his team through rows and rows of ammunition 155 rounds, etc. The 155 rounds caused damage to the vehicle. He cut off the possible terrorist vehicle that breached the perimeter. He then approached the vehicle and took the subject in custody. He rallied to his squad leader’s location with the Saudi Police. The vehicle was not searched for possible bombs and explosives. He was ordered to drive the vehicle out of the area knowing it might explode. He followed orders and drove the vehicle out. He continues to have nightmares waking his wife. Living on the edge every day. He also states in an email, dated 18 April 2017, he would like a re-evaluation of the Board to 1. have PTSD added to his medical discharge. He has been diagnosed with Gulf War Syndrome which to include PTSD. He applied for Combat Related Special Compensation (CRSC) and although he has been diagnosed with PTSD, it is not listed in his discharge, it list RA (rheumatoid arthritis). The VA gave him 100% service connected, with 50% being PTSD. 3. The applicant provides: a. Physical Evaluation Board (PEB) Proceedings, dated 30 June 2008, showing he was removed from the Temporary Disability Retired List (TDRL) on 20 June 2008 and placed on the Permanent Disability Retired List (PDRL). b. VA letter, dated 9 November 2008, showing all percentages assigned for service connected injuries including PTSD at 50%. c. VA letter, dated 10 February 2017, showing his benefits information. d. DD Form 214 that shows he was discharged honorably on 3 July 2003 due to retirement for temporary disability. 4. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army on 7 October 1986. b. He served continuously until his discharge with service in Southwest Asia from 2 December 1990 until 16 May 1991. c. On 9 December 2002, the applicant had a physical and interview for Medical Evaluation Board (MEB). His chief complaint was low back pain, neck pain and multiple joint pain. His MEB consults indicated Orthopedics, Rheumatology, Psychiatry and Physical Therapy for range of motion. Diagnosis was Rheumatoid arthritis, disqualifying in accordance with (IAW) Army Regulation (AR) 40-501(Medical Services – Standards of Medical Fitness), paragraph 3-40k (Systemic diseases). Additional diagnosis: * Neck pain, not disqualifying * Thoracic spine pain, not disqualifying * Dupuytren’s contracture, status post-surgery * Sensorineural hearing loss, left ear d. Conclusion: he failed to meet the retention criteria IAW AR 40-501, paragraph 3-40k. Recommendations: He should be referred to the PEB for further adjudication and requires the duty limitations specified on the attached DA Form 3349 (Physical Profile). a. e. On 19 December 2002, an email from MAJ Na S. El to Dr. Ma E. Ga , stated in effect no disqualifying psychiatric conditions. Applicant started on Prozac 10 mg for mild depressive symptoms thought to be due to adjustment disorder problems relative to medical diagnosis and physical limitations. f. On 8 January 2003, he had a consultation for neck pain, back pain, bilateral shoulder, bilateral knee, and bilateral ankle pain. Diagnosis was probable thoracic degenerative disk disease and rheumatoid arthritis. Recommendation was for MEB. Applicant was not a candidate for surgery at the time. g. On 15 January 2003, MEB proceedings which referred him to PEB stated the following: * Rheumatoid arthritis AR 40-501, 3-40k, incurred while entitled to base pay, did not exist prior to service * Neck pain, not disqualifying * Thoracic spine pain, not disqualifying * Dupuytren’s contracture, status post-surgery, not disqualifying * Sensorineural hearing loss, left ear, not disqualifying h. The applicant desired to remain on active duty under AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The findings by the approving authority were approved. The applicant did not agree with the board’s findings and recommendation. i. On 3 February 2003, the applicant in essence stated there was a medical condition for his back that was not mentioned. He described the medications he was on and how it cause severe nausea. He further proclaimed his desire to remain in service at least until retirement. j. On 7 February 2003, the appeal was considered and the original findings and recommendations were confirmed. k. On 25 February 2003, PEB proceedings determined the applicant had a disabling condition of Rheumatoid arthritis, as confirmed by a Rheumatologist, and is currently on medications. A 40% disability rating was recommended. He concurred and waived a formal hearing of his case on 17 March 2003. l. On 3 July 2003 he was honorably retired and placed on the temporary disability retired list. His DD Form 214 shows he was retired in accordance with chapter 4-24b(2) of AR 635-200 due to temporary disability. His DD Form 214 further show she completed 16 years, 8 months, and 27 days. a. m. On 2 December 2004, a TDRL PEB notified the applicant of his reevaluation results. Based on a thorough review of his most recent medical examination and all other available medical records, the TDRL PEB has recommended that he be retained on the TDRL with reexamination during 1 July 2006. n. On 25 May 2005, the applicant had a neurological consultation for his memory difficulties which the assessment stated dementia versus pseudo dementia from post- traumatic stress disorder (PTSD), as well as depression. o. On 28 August 2006, a TDRL PEB notified the applicant of his reevaluation results. Based on a thorough review of his most recent medical examination and all other available medical records, the TDRL PEB has recommended that he be retained on the TDRL with reexamination during 1 November 2007. p. On 17 April 2008, the TRDL PEB determined that the applicant’s Rheumatoid arthritis remains an active process that causes severe functional impairment, poorly responsive to medications. With continued and worsening joint involvement, illness is unlikely to improve, and he cannot return to active military service. His case was ready for final adjudication. The TDRL PEB assigned a 60% disability rating and his disposition be permanent disability retirement. He did not concur and demanded a formal hearing with personal appearance. He requested a regularly appointed counsel to represent him on 23 May 2008. q. In an undated letter to the PEB he in essence stated the pain and struggles he lives with daily even with medication. He was disappointed in the 60% rating in which the board recommended and believed it should have been 90-100%. r. On 16 June 2008, DA Form 751 (Telephone or Verbal Conversation Record) shows the applicant agreed with the informal PEB decision. s. On 20 June 2008, orders D172-12 removed him from TDRL to PDRL. 5. On 19 April 2017, Case Management Division (CMD) requested a medical review of the applicant’s medical condition(s) to ascertain if condition(s) warranted separation through medical channels. On 26 April 2017, the ARBA senior medical advisor rendered an advisory opinion in the applicant’s case. The advisor stated: a. Does the available record reasonably support PTSD or another boardable behavioral health condition(s) existed at the time of the applicant's military service? Yes, depression. b. Did this condition(s) fail medical retention standards IAW AR 40-501 (Medical Services Standards of Medical Fitness), warranting a separation through medical channels? No. a. c. The applicant did not meet medical retention standards for rheumatoid arthritis IAW Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), AR 40-501 , 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. d. The applicant met medical retention standards for other medical, physical and/or behavioral health conditions IAW Chapter 3, AR 40-501 , and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. e. The applicant's medical conditions were duly considered during medical separation processing. f. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 6. On 27 April 2017, CMD the applicant was provided with a copy of this advisory opinion to give him an opportunity (30 days) to submit a rebuttal. He did not respond. 7. By regulation, AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. 8. By regulation, AR 635-40, 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the medical advisory’s findings that the applicant's medical conditions were duly considered during medical separation processing and that the review of available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge, as well as the applicant failing to submit a rebuttal to those findings, the Board concluded that there was no error or injustice which would warrant making a change to the applicant’s 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. 6/4/2019 X CHAIRPERSON Signed by: 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 (AR) AR 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 Physical Evaluation Board (PEB) rates all disabilities using the Veteran's Administration Schedule for Rating Disabilities (VASRD). Department of Defense Instruction (DODI) 1332.39, and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), appendix B (Army Application of the Veterans Administration Schedule for Rating Disabilities), modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions. Ratings can range from 0 to 100 percent, rising in increments of 10 percent. Paragraph 3-40k states Rheumatoid arthritis that interferes with successful performance of duty or requires geographic assignment limitations or requires medication for control that requires frequent monitoring by a physician due to debilitating or serious side effects. 3. 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 a. 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. e. Appendix B, paragraph f of that regulations states conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness.. 4. 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; traumatic brain injury; 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 on 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.