ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20170007293 APPLICANT REQUESTS: * Conversion of medical separation (i.e., administrative separation) for personality disorder to permanent medical retirement for Post-Traumatic Stress Disorder (PTSD) * Personal Appearance before the Board COUNSEL REQUESTS: Convert the applicant’s medical separation (i.e., administrative separation) to a permanent medical retirement with a combined overall rating of 80% due to combat service APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Copy of military records * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Veteran Affairs (VA) rating decisions * Psychological evaluation * Military records * VA rating, dated 23 February 2009 and 12 May 2014 * Military awards * Mental health reports * Military discharge records * Medical examination and assessments for discharge, dated November 2005 * Degenerative Disc medical records * Radiculopathy Magnetic Resonance Imaging (MRI) records * Service treatment records and VA medical records 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 requests a conversion of his medical separation for personality disorder in 2006 to permanent medical retirement for Post-Traumatic Stress Disorder (PTSD). He was part of combat Soldiers that were improperly discharged and received Congressional attention in 2008. The Department of Veteran Affairs (VA) PTSD rating 70%, should have been higher initially. He has many orthopedic issues, which made mental worse. He was an outstanding decorated Soldier prior to combat. After combat, was diagnosed with PTSD, which was changed improperly to "personality disorder". He had normal childhood, no legal troubles. He was an excellent student, gifted/talented program. Parents divorced, mother couldn't support family so he dropped out, got his general education, enlisted at 17. He scored 93% on Armed Services Vocational Aptitude Battery. Selected for specialized schools, 1 of only 4 selected for Air Assault out of 500 men, even though he was in a non-combat MOS. He received multiple awards - two Army Achievement Medals, Army Commendation Medal. He deployed to Iraq 2004-2005, and regularly performed duties outside military occupational specialty (MOS) including driver and gunner in combat convoys, cleaned US Army Soldiers blood out of damaged vehicles, and guard duty. Combat caused his PTSD. After deployment, he was a different person, violent, angry; downward spiral, quick poor judgment marriage that was disastrous, legal troubles, tried to commit suicide, reckless behavior, anger issues, fights, car wrecks, etc. The Army improperly changed the diagnosis and kicked him out. He states that he has PTSD from being a gunner in combat for one year in Iraq. The Army initially recognized, but then discharged him improperly for a "personality disorder" that he does not have. He has PTSD, and should have been medically retired. This needs to be corrected. He was deployed from 2004-05, which makes him part of a large group of Soldiers that were to be reevaluated for so called preexisting "personality disorder" diagnosis per 2008 Congressional Order. Thousands of these Soldiers were improperly discharged, himself included. The reevaluation notice was never received because of address changes and a lack of diligence in locating veterans. This is negligent and callous. There is no way he could have done as well as he did as a highly decorated Soldier if he had a preexisting personality disorder. A close friend that was with him later committed suicide after being wait listed on suicide hotline. His case got Congressional interest also. A proper medical retirement will help put it right, give him better access to care and help honor the sacrifices he has made. a. His attorney in effect states, the applicant, a combat veteran, was improperly discharged from the Army on 23 March 2006. He was initially diagnosed on 10 November 2005 with PTSD after a yearlong combat tour as a gunner. He had so many problems that he could no longer effectively do his job in the military. An Army psychiatrist changed the diagnosis improperly to a "personality disorder," which under chapter 5-13, disqualified him from service, since that disorder is not found to be service connected. This is well known wrong that the Army was charged with correcting. b. 2008 Congressional Order: The applicant enlisted a month before 9/11. He was assigned a job in laundry and textiles despite a 93% score on the ASVAB because he was red/green color deficient. He had such a strong desire to be a Soldier that he would take any kind of work required of him. From 2001-2007, at least 26,000 enlisted service members were improperly discharged for a so-called "pre-existing personality disorder." Because PTSD and personality disorders share several similar symptoms, it may seem plausible to diagnose a suffering combat veteran with a personality disorder. PTSD can exacerbate personality disorder symptoms. However, these Soldiers did not have "personality disorders" until after returning from combat. Of course, these Soldiers were actually suffering from anxiety and depression, and/or PTSD. c. So many Soldiers were wrongfully discharged just like the applicant that it caused a great deal of media attention. Congress got involved and ordered the military to fix the problem. In response, the Department of Defense (DOD) implement new discharge procedures, and personality disorder discharges were reduced by 31 %. The DOD also was to medically process all these improperly discharged Soldiers. The DOD also sent a single letter to notify these Soldiers that they were eligible for a medical evaluation board. Unfortunately, the majority of these Soldiers, including the applicant, did not receive the letter because of changes in addresses and a lack of diligence by the military in locating their service members. His combat service and wrongful discharge falls squarely in the time frame where personality disorders and other neurotic conditions were the leading medical diagnoses that resulted in hospitalization for enlisted service members (Walter Reed Army Institute of Research 2013: http://blogs.uw.edu/brtc/files/2014/12/Leroux-2014-US-military-discharges-for-PDs.pdf). d. VA Rating: The VA found the applicant to have PTSD (70% rating) and additional orthopedic issues, giving him an overall VA Disability rating of 80% on 12 May 2014 (see VA ratings). The VA gave the Soldier an initial rating of 30% for PTSD shortly after discharge, without the assistance of an attorney. The attached psychological evaluation and report at (Exhibit 2) shows SPC Se__ was probably worse when he initially was discharged, and the proper rating for the entire time should have been 70%. e. Personality Disorder: Personality disorders typically present in adolescence or early adulthood. The American Psychological Association opines personality disorders will almost always have a negative impact on the workplace. Prior to a combat tour, the applicant did not have any difficulties performing his military duties. Quite the opposite is true. He enlisted and began active duty at age 17. He successfully completed basic training, a Combat Communication course, and Light Fighters School. He was recognized for good conduct and outstanding work performance. He was also never in trouble with the law prior to serving in combat. His mental health issues in the military did not appear until he returned from a one year combat deployment as a gunner to Iraq in January of 2005. f. PTSD: According to the American Psychological Association, and the Diagnostic and Statistical Manual of Mental Disorders (DSM) V, some symptoms of PTSD are feelings of hopelessness, shame, despair, depression, anxiety, drinking/drug problems, chronic pain, and relationship problems. Per the DSM V, the criteria for personality disorders is different yet similar, the some of the major differences being when the problems started and the lack of a direct cause: (1) An enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual's culture. (2) The enduring pattern is inflexible and pervasive across a broad range of personal and social situations. (3) The enduring pattern leads to clinically significant distress or impairment in social, occupational, or other important areas of functioning. (4) The pattern is stable and of long duration, and its onset can be traced back at least to adolescence or early adulthood. (5) The enduring pattern is not better accounted for as a manifestation or consequence of another mental disorder. (6) The enduring pattern is not due to the direct physiological effects of a substance (e.g., a drug abuse, a medication) or a general medical condition (e.g., head trauma). g. In other words, if the symptoms appear in early in life without a specific cause, like drug abuse or physical injury, then the condition may be a personality disorder. But, if the symptoms manifest in adulthood, then it is most likely not a personality disorder. Further, it is not a personality disorder if there is a cause, i.e., a trauma. h. The applicant did not meet the criteria for a personality disorder for several reasons: He had no symptoms prior to combat, and his symptoms are due to a general medical condition - blasts and horrific experiences in combat. i. Soldier 's Background: The applicant had a normal, healthy childhood. His childhood history is unremarkable, except for a short time on Ritalin when his parents were getting divorced. All the way through 9th grade, he was in gifted and talented programs in school. While his parents were going through a rough divorce, he had some struggles and got into a few fights, quite normal for a struggling teenage boy. In the 10th grade, he dropped out of school and got his GED. He left school early to help support his family- after his parents’ divorce was final, his mother could not financially support the family. So, he enlisted in the Army to help support his family and younger siblings. He did well in the Army. He had little to no training to be a combat Soldier. Like so many Soldiers, he was not equipped to deal with the stress of combat. j. Following his combat service, instead of providing the emotional therapy he desperately needed, Army medical professionals wrote inaccurate things in his record about his mother being an alcoholic and drug addict and his father being verbally and physically abusive. This is not true, and hopefully is merely a clerical error with information from another file. k. Service Connected Issues: In 2005, after returning from war serving as an infantry gunner in a combat zone, his real issues began. In May, he had assault charges filed against him that were later dropped. The person who tried to have him arrested was a relative of his then fiancé, now ex-wife. That summer, he drove intoxicated and argued with his then fiancé (now ex-wife) while doing so. He lost control of his vehicle and hit a tree. He later admitted that he had been trying to commit suicide because of his distress and depression after returning from combat in Iraq. l. During his deployment, he had worked closely and befriended two Iraqi nationals that were working with the U.S. Army. These two were later found to be smuggling arms out of the U.S. Army post. He felt incredibly betrayed and developed significant trust issues. Afterwards, he found it very difficult to trust anyone and still does not. m. Part of his job was to clean the blood, occasional U.S. Army Soldier's body parts, and trash out of damaged military vehicles. After the betrayal by his local friends, every time he had to clean his fellow Soldiers' blood out of a military vehicle, he was tortured by thoughts of wondering if the bloodshed was caused by their betrayal. He wondered if he was not to blame for trusting the Iraqi nationals. Naturally, his ex-wife said that when he came home from war, he was "not the same person," and he got excessively angry over any small things and isolated himself. n. Clearly, his symptoms met the criteria for PTSD and the Army initially diagnosed him with PTSD. He was depressed, anxious, hopeless, shameful, and having relationship and occupation problems. It was even stated in his personality inventory on his Mental Status Evaluation Form of 1 November 2005 (attached Tab 8), that his profile "presented an individual who is moderately distressed and generally feels angry, depressed, and worried." o. The applicant has since had to deal with some of his close friends taking their own lives, including X__ X__, a friend he served with closely for several years. X__ had called the VA suicide hotline, only to be told to leave a message and get a call back at a later date. X__ never made it that later date, as he killed himself that same night. The suicide hotline staff called back a few days later, the call was answered by a grieving family member. His family would later go on to testify in front of Congress about these deficiencies, and changes would be made. But it is too little too late for applicant’s buddies. Several of the U.S. Marines and Infantrymen in his unit had immense issues adjusting to life upon their return stateside. Many took their own lives because of their inability to handle the stress and lack of support from the U.S. military. p. The military misdiagnosed a good Soldier and kicked him out because he struggled after a yearlong combat tour as a gunner, cleaning our fellow Soldiers' blood out of vehicles. q. Justification: Under Integrated Disability Evaluation System, the U.S. Army rating must adopt the VA rating for all unfitting conditions. The applicant classically unfit due to PTSD - proven by the fact that he was discharged for severe mental illness. He is also unfit due to his lower back injuries with radiculopathy. His VA ratings are 70% for PTSD, 20% for Degenerative Disc Disease L4-5 with Intervertebral Disc Syndrome, and 10% for Right Lower Extremity Radiculopathy. When a mental disorder (such as PTSD or personality disorder) that develops in service as a result of a highly stressful event is severe enough to bring about the veteran's release from active military service as was done here, the rating agency shall assign an evaluation of not less than 50% and schedule an exam within the 6-month period following the veteran's discharge to determine whether a change in evaluation is warranted (38 U.S.C. 1155, 38 CFR 4.129). His condition is stable, and has not materially changed in several years. He should be permanently medically retired with at least a 30% rating for PTSD, although 70% would be the proper rating. r. Remedy: Convert his medical separation to a permanent medical retirement (PDRL) with a combined overall rating of 80% due to combat service. 3. The applicant provides: a. Memorandum for DD Form 149 from X__ X. X__, dated 6 Mar 17. Stated above. b. Psychological evaluation, dated 12 November 2016, by Dr. X__ X. X__. c. Copy of military records showing service records of enlistment as a 92S (Laundry and Textile Specialist), statement of wartime service, separation documents, developmental counseling forms, initial report of medical examination, additional medical examinations, report of mental status evaluation, and DD Form 214. d. VA rating, dated 23 February 2009, decision service connection for posttraumatic stress disorder is granted with an evaluation of 30% effective 28 September 2008. e. VA rating, dated 12 November 2014, showing an overall or combined rating as 80% effective 12 May 2014. f. Military awards showing Good Conduct Medal first award, statement of wartime service, Army Commendation Medal, Army Achievement Medal, Certificate of Training, and a course completion certificate for light fighters school. g. Mental health report from October 2007 until July 2013. h. Separation packet. i. Medical examination and assessments for discharge. j. Degenerative disc and back problem medical documents. k. MRI results showing he has degenerative disc disease at L4-L5 and L5-S1, which are aggravated with sitting and standing for prolonged periods of time. l. Medical records showing multiple visits for multiple issues. 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 8 August 2001. On 8 December 2003, he extended his enlistment for 14 months for contingency deployment conditions establishing his new expiration term of service 7 October 2005. b. He served in Iraq from 14 January 2004 until 17 January 2005. c. On 1 November 2005, he underwent a mental status evaluation. His Report of Mental Status Evaluation shows the diagnosis was adjustment disorder with anxiety, personality disorder, with borderline and antisocial features (preexisting, primary diagnosis). Recommendation was the applicant be administratively separated in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) paragraph 5-13 (Separation because of personality disorder). d. On 9 November 2005, the applicant was notified that under provisions (UP) of AR 635-200 paragraph 5-13. The commander indicated that the reasons for his proposed action are: * On or about 1 November 2005, you were diagnosed by a medical psychiatrist, with Axis I: Adjustment Disorder with Anxiety and Axis II: Personality Disorder Not Otherwise Specified (NOS), with Borderline and Antisocial Features (Preexisting, Primary Diagnosis). * According to the medical examiner, the conditions and problems presented by him are not amenable to hospitalization, short-term treatment, rehabilitative transfer, training, or reclassification to another type of duty within the military * The medical examiner also indicated that it is unlikely that efforts to rehabilitate or develop you into a satisfactory member will be successful and separation under Chapter 5-13, is in the best interest of both him and the Army * On 7 November 2005, he was counseled and advised that separation actions proceedings were being initiated due to his recent fit for duty evaluation * On 7 February 2006, he was counseled for failing to overcome his deficiencies by showing no improvement in the work place, showing no motivation, being unwilling to give 100% of himself, and by showing no progress from his initial self-referral on 15 June 2005 * His condition has significantly impacted his ability to function as a Soldier * Continued duty is likely to result in continued problems for you and this command; separation is this unit's only option e. On 10 November 2005, he began separation physical. f. In February 2006, the command initiated separation action on the applicant. g. In February 2006, the applicant acknowledged the following: * Notice of proposed separation and privacy act statement * Right to consult with counsel * Right to submit statements on his behalf * Regards to potential prejudice in civilian life based on characterization of service * Right to request an administrative board h. In February 2006, his immediate commander recommended he be separated under the provisions of AR 635-200 chapter 5-13. His chain of command concurred with the recommendation. i. On 7 March 2006, the separation authority approved separation and directed an honorable conditions characterization. j. On 23 March 2006, he was discharged. His DD Form 214 shows he was honorably discharged in accordance with chapter 5-13 of AR 635-200 because of personality disorder. 5. On 23 May 2017, the Army Review Boards Agency medical advisor/Psychologist rendered an advisory opinion in the applicant’s case. The advisor opined in regard to the referral questions, (a) the applicant's medical records do at the time of his discharge reasonably support his having had a boardable medical condition for that period; (b) nevertheless, he did meet mental-health standards in AR 40-501 (Standards of Medical Fitness) and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation); (c) based on available behavioral-health evidence the applicant did not meet medical retirement standards. Part of the problem in this case is that the applicant seems to think that if he can demonstrate he has PTSD, then he must have boardable condition. It is the ability of a Soldier to function and the actual or anticipated length of dysfunction that is crucial in most Medical Evaluation Board (MEB) referrals. In conclusion: a. The applicant did meet medical retention standards in accordance with Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), AR 40 -501, and following the provisions set forth in AR 635-40 that were applicable to the Applicant's era of service. b. The applicant's mental-health conditions were considered at the time of his discharge from the Army. c. A review of available documentation did not discover evidence of a mental-health considerations that would have made a referral for medical retirement appropriate. 6. On 19 June 2017, the applicant’s attorney submitted an extension to submit comments. An extension was granted until 31 July 2017. No response was made as of 31 July 2017. 7. On 31 October 2017, his attorney submitted a rebuttal in effect stating PTSD and Traumatic Brain Injuries may exacerbate personality disorders. The military did not adhere to its own regulations. AR 635-40, Chapter 5, and AR 635-200, Chapter 5, both require that when a condition prevents continued military service, a medical evaluation for medical retirement is required. Also required is a determination as to whether a pre-existing condition was aggravated by military service, and a determination if the member was fit to continue service. AR 635-40, Chapter 5, February 8, 2006 version, specifically states it is “not to be confused with separation under the provisions of AR 635-200, chapter 5 [which] provides for involuntary separation “within the first 6 months of entry onto active duty. If the time period exceeds 6 months or if the condition is disqualifying under AR 40-501, chapter 3, a Soldier is entitled to evaluation by a Physical Evaluation Board or may waive evaluation under this chapter 4 (emphasis added). Had AR 635-40 been followed, he either would have been given adequate therapy in order to recover enough to remain on active duty, or he would have been medically retired with a service connected condition. 8. By regulation, applicants do not have a right to a hearing before the Board. The Director or the ABCMR may grant a formal hearing whenever justice requires. 9. By regulation (AR 635-200, paragraph 5-13), a Soldier could be separated for personality disorder (as determined by medical authority), not amounting to disability under AR 635-40, that interfered with assignment to or performance of duty. The condition must be a deeply-ingrained maladaptive pattern of behavior of long duration that interfered with the Soldier's ability to perform duty. The diagnosis must have concluded that the disorder was so severe that the Soldier’s ability to function in the military environment was significantly impaired. 10. 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 AR 40-501, 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. c. 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. 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. 11. By law (Title 10, U.S. Code, sections 1110 and 1131), the Army rates only conditions determined to be 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that it could make a fair and equitable decision in the case without a personal appearance by the applicant. Additionally, based upon the medical advisory’s finding that it did not discover evidence of a mental-health considerations that would have made a referral for medical retirement appropriate, the Board concluded there was insufficient evidence to warrant changing the reason for separation to a medical retirement. 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 (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 635-200 provides the basic authority for the separation of enlisted personnel. Paragraph 5-13 at the time stated a Soldier could be separated for personality disorder (as determined by medical authority), not amounting to disability under Army Regulation 635-40, that interfered with assignment to or performance of duty. The regulation required that the condition be a deeply-ingrained maladaptive pattern of behavior of long duration that interfered with the Soldier's ability to perform duty. Commanders would not take action prescribed in this paragraph in lieu of disciplinary action. The diagnosis must have concluded that the disorder was so severe that the Soldier’s ability to function in the military environment was significantly impaired. Separation for personality disorder was not appropriate when separation was warranted under chapter 4, 5, 7, 9, 10, 11, 13, 14, or 15 of this regulation; Army Regulation 604-10; or Army Regulation 635-40. 4. AR 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals in paragraph 3–2. Paragraph 3-35 (Personality, sexual and gender identity, or factitious disorders; disorders of impulse control not elsewhere classified; substance-related disorders) states the conditions may render an individual administratively unfit rather than unfit because of physical disability. Interference with performance of effective duty in association with these conditions will be dealt with through administrative channels. 5. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. 6. 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) AR20170007293 12 1