ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20170008831 APPLICANT REQUESTS: correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show medical retirement (permanent) and entitlement to all benefits of a retiree including back pay. In a second request, he requests correction to his DD Form 214 to show his current legal name, in effect, based on his transgender status. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Standard Form 600 (Chronological Statement of Medical Care) dated 3 October 2012 * Applicant Attorney Appointment * Attorney’s Statement, dated 10 September 2018 * Attorney’s Statement, dated 12 May 2019 * Attorney’s Statement, dated 31 May 2019 * Court Order Changing the Name of an Adult, dated 19 September 2017 * Department of Veterans Affairs (VA), Applicant’s Medical Diagnosis, dated 26 February 2018 FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (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 he was misdiagnosed while on active duty. He served in Afghanistan during Operation Enduring Freedom. He had depression and post- traumatic stress disorder (PTSD) when his diagnosis should have been schizophrenia. The VA corrected his diagnosis to schizophrenia which was triggered by his experiences in combat. He also has an adjustment disorder. Additionally on 10 September 2018, the applicant submitted an affidavit wherein he requests his DD Form 214 be corrected to show his current legal name based on his transgender status effective in 2017. 3. His name change request was addressed in Army Docket Number AR20180001892; therefore, it will not be further discussed in this record of proceedings. 4. The applicant enlisted in the Regular Army on 3 February 2009 signing a 4-year enlistment contract as shown on his DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States). His 4-year enlistment contract established his expiration of term of active duty service date as 2 February 2013. 5. A review of his record shows he served in Afghanistan from 7 March 2011 to 8 December 2011. He received the Army Commendation Medal by Permanent Orders Number 336-098, dated 2 December 2011, for his meritorious service during Operation Enduring Freedom. His citation reads in part, "[The applicant's] outstanding leadership, courage and dedication contributed significantly to the overall success of this demanding mission." He further was commended for his outstanding performance and selfless service. 6. On 3 January 2012, he received the Army Achievement Medal for meritorious service during the period from 25 September 2009 to 3 January 2012. He was commended for his outstanding dedication to duty, selfless service and professionalism while serving as the company automated logistical specialist. 7. On 15 October 2012, Orders 289-1323 were published by Headquarters, U.S. Army Garrison, Fort Sill, Oklahoma reassigning him to the post transition center for final out- processing from the U.S. Army. His effective date of separation or release from active duty was 2 February 2013, 4 years after signing his enlistment contract. 8. On 2 February 2013, he was issued a DD Form 214 showing he had completed 4 years of honorable active duty service. His issued DD Form 214 contains the following pertinent information: * Block 23 (Type of Separation) – Release from active duty * Block 24 (Character of Service) – Honorable * Block 25 (Separation Authority) – Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 4 * Block 28 (Narrative Reason for Separation) – Completion of required active service 9. In support of his application he provided a single page Standard Form 600 showing on 3 October 2012 his medical problem list included PTSD and adjustment disorder with disturbance of emotions and conduct. He also provided a letter from a VA staff psychiatrist who states the applicant receives treatment both as an inpatient and outpatient since his release from active duty. The VA diagnosed him with schizophrenia, schizoaffective disorder, and major depression with psychosis, anxiety and PTSD which are related to his experiences in Afghanistan. The psychiatrist states the aforementioned diagnoses appear to have started during his period of active duty service. The military only diagnosed him with adjustment disorder and depression. He was discharged in February 2013 and by June 2013 he was hospitalized for psychosis. It is the VA psychiatrist opinion that all the aforementioned illnesses could have been diagnosed and treated prior to his release from active duty. As of 26 February 2018, he remains in the care of the VA and is compliant with his treatment plan. 10. In the processing of this case, a medical advisory opinion was obtained from the senior staff psychiatrist at the Army Review Boards Agency on 11 June 2018. In reviewing the application, the applicant contends he was misdiagnosed by the military. The staff psychiatrist reviewed the evidence the applicant provided, his military electronic medical records, and his VA electronic medical records through the Joint Legacy Viewer and his electronic personnel record. A copy of the complete medical advisory was provided to the Board for their review and consideration. a. The staff psychiatrist restates the letter dated 26 February 2018 within his medical advisory opinion identifying the military medical diagnoses and then the VA medical diagnoses to include the fact he was hospitalized by the VA. b. A review of his VA medical records shows he is 100 percent service-connected disabled for psychosis, disorganized schizophrenia. He also is service-connected for the following medical conditions: * degenerative arthritis of the spine, 10 percent * limited flexion of the knee, 10 percent * knee condition, 10 percent * tinnitus, 10 percent c. His VA behavioral health problem list includes the following plus he has been hospitalized twice for his psychotic condition: * homelessness * Schizoaffective disorder, depressive type * Schizoaffective disorder, not otherwise specified * anxiety * major depression * catatonic schizophrenia d. A review of his military medical records shows the following: (1) On 9 January 2012 post-deployment, he was seen by a behavioral health provider who diagnosed him with adjustment disorder with disturbance of emotions and conduct. During his appointment he described the symptoms of anxiety, depression, and intrusive memories related to his deployment. (There is no history of a specific traumatic event in Afghanistan and he does not have the Combat Action Badge showing he engaged with enemy forces.) He also expressed being plagued by disturbing dreams and feelings of disorientation since his return from Afghanistan. He reported problems with his family and church due to his lifestyle choices. His mood was described as irritable, anxious, a decreased attention span, his thoughts were linear, logical and goal directed. He denied delusions, suicidal ideation or homicidal ideation. (2) On 26 January 2012, he was seen in the behavioral health clinic wherein he reported ongoing anxiety regarding his continued estrangement from his father who did not approve of his lifestyle and sexual preferences. He appeared to be depressed and anxious. His thought process remained linear, logical and goal directed with no report of delusions. His protective factors were identified as resilience, capacity for intact reality testing, his amenability to treatment and social support. His diagnosis remained adjustment disorder with disturbance of emotion and conduct. (3) On 3 April 2012, he was seen in the behavioral health clinic for complaints of depression and anxiety following a stressful family visit. His mood was dysthymic, sad and tearful. (4) On 4 April 2012, he met with his primary care manager and reported sleep problems. He stated he was only getting 4 to 5 hours of sleep a night. His mood was dysthymic. He was prescribed medication for sleep. (5) On 1 May 2012, he met with a behavioral health provider and reported ongoing symptoms of depression related to sexual preferences conflicting with family and his religious upbringing. He met again with a behavioral health provider on 7 May 2012 informing the provider he had stopped taking his prescribed medications due to a dream wherein he was told not to take medication. (6) On 11 July 2012 he was seen by a psychiatrist who diagnosed him with moderate to severe depression. He again reported he would not take medications because he had a dream he turned into a zombie presumably based on his prescribed medications. It was noted he would not initiate conversation at the start of the appointment and he had to be prompted. He also would not engage in therapy unless prompted. His treating psychiatrist prescribed a new medication to manage the depressive symptoms. (7) On or about 7 August 2012, he was disenrolled from the behavioral health clinic due to a permanent change of station move. The providers made attempts to contact him so he could provide his gaining unit/hospital with his behavioral health medical records with the intent he would continue treatment at his new duty station. (8) After his move on 20 August 2012, his primary care provider diagnosed him with PTSD on the basis of a PTSD screening test and referred him to the behavioral health clinic. (9) On 4 September 2012 he was seen at the behavioral health clinic at his new duty location. He reported he had insomnia. He reported he was prescribed medication for his depression but did not want to take it. He was administered psychological assessments – Patient Health Questionnaire (PHQ-9) which is a multipurpose instrument for screening, diagnosing and monitoring depression. His most problematic areas were trouble concentrating and moving or speaking slowly or being restless. He found it difficult to do his work, take care of things at home, or get along with others. Upon examination, his mood was depressed and his affect was incongruent with his mood. He exhibited no hallucination, no delusions, no suicide ideation or homicidal ideation. His thought process was linear, logical and goal directed. His diagnosis remained adjustment disorder with disturbance of emotions and conduct. (10) On 17 September 2012, he was seen in triage (behavioral health clinic) after an appointment with his primary care manager. He reported he felt like he was being picked on at his unit and that he was being harassed. He reported vague homicidal thoughts to his primary care manager. He denied anxiety symptoms, psychotic symptoms, cognitive symptoms, and substance use symptoms. His thought process was linear, logical and goal directed. He denied delusions. His diagnosis remained adjustment disorder, and ruled out major depressive disorder. He continued to meet with behavioral health providers. (11) On 4 October 2012, he completed Integrated Disability Evaluation System (IDES) screening forms in preparation for a medical evaluation board pertaining to his chronic low back pain. The behavioral health symptoms that were most endorsed were sleep disturbances, irritability, lack of concentration and hypervigilance. (12) On 7 November 2012, he was seen in the behavioral health clinic for follow up assessment/treatment. He denied hallucinations, delusions, paranoid ideation, suicidal ideation, and homicidal ideation. He complained of poor sleep. His diagnosis remained adjustment disorder with disturbance of emotions. (13) On 12 November 2012, he was again seen in behavioral health with no change in his status or diagnosis. His mood was described as "anxious regarding family issues." e. The agency psychiatrist pointed out the applicant’s duty accomplishments including receiving two military awards for his duty performance. f. The applicant’s Enlisted Record Brief, dated 2 December 2012, shows the applicant’s PUHLES was 1 1 1 1 1 1 with no psychological impairment. [A physical profile, as reflected on a DA Form 3349 (Physical Profile), is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary.] g. There are no documents in his medical records showing he experienced any obvious symptoms of psychosis such as hallucinations, paranoia, delusions, referential thinking, thought broadcasting, thought insertion or thought deletion. h. There are no records showing he was hospitalized for recurrent psychiatric care while on active duty. There are also no records showing his duties were profiled and limited or that he had significant interference in military functioning. As such, he did not fail the medical retention standards identified in Army Regulation 40-501 (Standards of Medical Fitness). As he did not fail medical retention standards, there was no regulatory requirement to refer his psychiatric medical records into the IDES. i. The medical advisor states referral to the IDES is not solely based on a medical diagnosis, regulatory guidance requires the medical or psychiatric diagnoses be unfitting meaning a Soldier cannot perform the prescribed (regulatory) duties of their military occupational specialty or the prescribed soldierly duties including the Army Physical Fitness Test. In reviewing the applicant’s records there are no limiting profiles, no counseling statements, no nonjudicial or judicial punishments and no hospitalizations limiting his duty performance. He performed satisfactorily and his duty performance was acknowledged by his commanders. 11. On 15 June 2018, the applicant was sent a copy of the medical advisory opinion for his opportunity to respond and/or rebut it. By 1 August 2018 the applicant had not responded. 12. It appears the applicant retained the services of an attorney for on 10 September 2018, the applicant’s attorney states he was unjustly and erroneously separated from the Army with an honorable characterization of service on 2 February 2013. At the time of his discharge he suffered from PTSD and he should have received a medical retirement or at least placed on the temporary disabled retirement list (TDRL). The attorney then discusses the Army Discharge Review Board (ADRB) as the board to review the applicant’s application. (However, the ADRB does not have the Secretarial authority to correct a record to show medical retirement. The authority to correct a record to show medical separation or retirement rests with the U.S. Army Physical Disability Agency and the ABCMR.) He then outlines why the ABCMR should accept the application and process it favorably for the applicant. a. He writes that the United States Congress exercises oversight over the boards. The boards have independent legal and medical advisors as well as a requirement to disclose nearly all communication with entities outside the Army Review Boards Agency. b. The ABCMR should grant corrections to a record based on propriety, equity and injustice. He opines, "Inequity exists when the discharge was inconsistent with disciplinary standards at the time, or when the quality of the member’s service and capability to perform military service make the discharge unfair." To determine the quality of service, one must take into consideration a Veteran’s rank, awards and decorations, letters of recommendation or reprimand, combat service, acts of merit, etc. He states, "The Board is required to 'examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choices made.'" c. He then cites the Hagel Memorandum, the former Secretary of the Department of Defense memorandum dated 3 September 2014, wherein Veterans petitioning the boards for a discharge upgrade should receive liberal considerations when reviewing records. The liberal consideration pertains to PTSD and those suffering from traumatic brain injury (TBI) when their condition is considered service-connected. Additionally, he cites the 25 August 2017 Undersecretary of Defense for Personnel and Readiness memorandum. d. The agency medical advisory stated the applicant was not unfit because of his positive service record, which he opines is in contrast with the medical diagnoses made by the behavioral health specialist at the time of his active duty service. The attorney argues there is a procedural defect in this case. He cites Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) stating there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself disqualifying for military service. e. The applicant’s medical records demonstrate he had behavioral health issues that in his opinion were service related. He suffered from an adjustment disorder but he opines the symptoms mirrored that of PTSD. The medical advisory opinion relies primarily on the fact that the applicant did not demonstrate negative behavior and thus he was not "unfit." This is not the definition of "unfit for military service." He opines a Soldier can be medically unfit while still being able to perform the requirements of their job. In this specific case, the applicant's adjustment disorder affected his daily life activities. He did express he was having difficulty at his job, but did not act out in a criminal or negative manner. f. Title 10, U.S. Code, chapter 61 provides for the disability retirement or separation for a member who is physically unfit to perform the duties of his officer, rank, grade, or rating because of a disability incurred while entitled to basic pay. In this case the applicant is psychically disabled by PTSD due to "stressful events" experienced while in Afghanistan. There is enough proof the applicant has PTSD when you take into consideration his VA ratings. 13. The applicant provided a personal affidavit to his attorney who included it with his legal brief. He restates his military history including assignment history. He deployed in 2011. He states, [He] saw a lot of difficult stuff while [he] was there. While deployed, [he] was on the entry control point. [He] pulled security and the position was extremely stressful. [He] was constantly on edge. Once while inspecting a vehicle, [he] found a black box with wires. [He] called for backup soldiers, but it was a false alarm. It freaked [him] out. It was a very stressful time. [He] began to suffer [PTSD]. [He] began to go to behavioral health at the time, but [he] was misdiagnosed by the military. 14. He continues his affidavit be stating he got out of the military in 2013 and that same year he was diagnosed with PTSD and schizophrenia. He was hospitalized for one week because he was experiencing hallucinations. He concludes by stating his record should be corrected to show he was medically retired based on a finding of unfitness. He was diagnosed by the VA and at the time of his affidavit was rated 50 percent service-connected by the VA. 15. It appears on 12 May 2019, the applicant’s legal counsel resubmitted his legal brief prepared on 18 September 2018. As this appears to be a duplicate legal brief, it will not be discussed in this record of proceedings. 16. On 21 May 2019, the applicant’s attorney provided a separate memorandum for the Board’s consideration wherein he requests the applicant be placed on the permanent disability retired list based on his well-documented behavioral health issues. He states the applicant has stabilized over the past 3 years and believes there would be little reason for placement on the TDRL. 17. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions (emphasis added) and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 18. 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 (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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 misconduct that led to the discharge (emphasis added). In this case there is no recorded misconduct. 19. Concerning the attorney’s reference to the Hagel Memorandum of 3 September 2014 and the Office of the Undersecretary of Defense for Personal and Readiness Memorandum of 25 August 2017, both of these memorandums are not applicable to this application before the Board. The applicant received an honorable discharge for his honorable service as demonstrated by his record of performance. These two memorandums concern individuals who received a discharge characterization of service of under other than honorable conditions or a general, under honorable conditions discharge and whose misconduct might be mitigated by undiagnosed PTSD or other behavioral health condition. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the medical advisory opinion. The Board considered the applicant’s statement, VA medical records (post-service) and the conclusions of the advising official. The Board acknowledges that the applicant now has service- connected disabilities as assessed by the VA, but concurs with the advising official that there is no evidence of conditions existing at the time of his separation that would have warranted entry into the Integrated Disability Evaluation System. The Board determined there was insufficient evidence to correct the applicant’s record as requested. 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 40-501, Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below acceptable physical fitness standards. a. For anxiety, somatoform, dissociative disorders and mood disorders (depression) a Soldier can be referred to a medical evaluation board if the medical condition(s) require extended or recurrent hospitalization, limitation of duty or duty in a protected environment or interfere with effective military performance. Situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duties. b. Paragraph 3-31 (Disorders with psychotic features) shows the causes for referral to a medical evaluation board include diagnosed psychiatric conditions that fail to respond to treatment or restore the Soldier to full function with 1 year of onset of treatment. Mental disorders not secondary to intoxication, infections, toxic, or organic causes, with gross impairment in reality testing, resulting in interference with social adjustment or with duty performance. 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Chapter 3 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or his office, rank, grade 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. b. 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. c. Chapter 4 provides guidance on referring Soldiers for evaluation by a medical evaluation board (MEB) when a question arises as to the Soldier's ability to perform the duties of his or his office because of physical disability. The process begins when the Soldier is issued a permanent profile approved in accordance with Army Regulation 40- 501 and the profile contains a numerical designator of P3/P4 in any of the serial profile factors for a condition that appears to not meet medical retention standards. Within one year of diagnosis, the Soldier must be assigned a P3/P4 profile for referral to the DES (IDES). 5. 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. 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.] ABCMR Record of Proceedings (cont) AR20170008831 12 1