ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 May 2019 DOCKET NUMBER: AR20170010582 APPLICANT REQUESTS: in effect, honorable discharge or retirement due to physical disability in lieu of honorable discharge due to physical condition, not a disability; the applicant also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 45 pages of service 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 states: a. After graduating from high school in 2000, he answered his nation’s call for Soldiers and enlisted as a medic. He went straight from basic combat training (BCT), to advanced individual training (AIT), to Iraq, where it was discovered he apparently had mental illness and became unable to perform in a war zone. He was then returned to Fort Hood, TX, and kicked out of the military. b. A medical evaluation board (MEB) was advised by the doctor on the plane returning from Iraq, but he was not given medical treatment, medical evaluation, nothing. He was thrown away like garbage. c. He believes the military records are not a true representation of the situation, but he also believes he was treated unjustly because of the stigma and taboo of mental illness. Unfortunately, not only has he had to live with the symptoms of post-traumatic stress disorder (PTSD) and bipolar disorder, this has cost him two wives, custody of his child, four arrests for battery, and drug addictions. Because of the untreated condition of PTSD, he is now bipolar and disabled, thanks to the Army. a. d. He finds it appalling that the Army threw him out like garbage. Why wasn’t he offered treatment, counseling, or a medical discharge? It scares him that other Soldiers may be treated the same. To prevent other Soldiers from being treated like this, resulting in the progression of medical conditions into more severe conditions, he wants a hearing, he wants his records changed, and he wants medical retirement backdated from the day he was treated like trash. If he had received proper treatment back then, he may not be disabled today, but we will never know. 3. The applicant enlisted in the Regular Army on 14 June 2002, and was awarded the military occupational specialty (MOS) 91W (Health Care Specialist). 4. The evidence shows the applicant deployed to Iraq, but the exact dates of his deployment to Iraq are not in his available records for review. 5. A handwritten note from Major (MAJ) X , Psychiatrist, 4th Infantry Division (ID), dated 19 July 2003, states: a. The applicant was well known to the 4th ID, Mental Health Section and was escorted to the clinic by two unit members today, relating that he could no longer cope with being in Iraq. He felt he was getting worse emotionally, was “stressed out”, and unable to function. b. His chain of command endorsed that he needed supportive counseling on a daily basis to get through the day. He had not been performing his job and used vast unit resources to help him “cope.” He also received about five or six negative counseling statements in the last 2 months. The applicant reported his main stress was being deployed and therefore was unable to get emotionally and psychologically stable while deployed. He was crying and emotionally labile and reported feeling like he was unable to control his anger. c. His medications were listed as Zoloft (an antidepressant), Wellbutrin (an antidepressant), and Klonipin (an antianxiety agent). His diagnosis is listed as adjustment disorder with mixed anxiety and depression. The evaluating psychiatrist determined the applicant had chronic mental health issues. His problems had only progressed and continued. He exhausted all mental health resources and would continue to be an all-encompassing drain on unit resources and mission. His expeditious separation via Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, and transfer back to Fort Hood, TX, for final out-processing was recommended. If the applicant were not separated, it was MAJ X ’s opinion he was at very high risk of being sent back in the near future through the medical system as a psychiatric patient. 6. A DA Form 4856 (Developmental Counseling Form), dated 26 July 2003, at Camp Speicher, Iraq, shows: 1. a. The purpose of the counseling was to inform the applicant that his immediate commander was initiating his separation from the Army under the provisions of Army Regulation 635-200, paragraph 5-17, for designated physical or mental conditions. b. The applicant displayed behaviors that did not allow him to function in a forward deployed environment, to include but not limited to, losing control of his emotions on a regular basis, resulting in confrontation in his section, crying uncontrollably for no apparent reason, and communicating a verbal threat directed toward a fellow Soldier. c. His company commander believed there were several factors affecting his behavior, the most significant being his separation from his wife. He also believed he could be an asset to the company if he could get a handle on his emotions, but in his then current state, he was a liability. He was taxing the Mental Health assets with frequent visits as well as taxing those within his own section who constantly try to help him overcome his problem. d. Effective immediately, he would not administer any medications to any soldiers in patient hold without the direct supervision of his section sergeant or officer in charge. If he had not shown significant improvement in his mental condition by 9 August 2003, his commander would follow through with the discharge per paragraph 5-17 and he would be returned to Fort Hood, TX, for separation from the Army. If he showed improvement and proved to his chain of command he could do his job in this environment, he would be allowed to continue his service. e. The plan of action shows he was to seek counsel from the battalion chaplain, continue to take all prescribed medications, and report to Division Mental Health on 28 July 2003 for a command referred mental health evaluation. 7. An undated DA Form 3822-R (Report of Mental Status Evaluation), likewise signed by MAJ X , Psychiatrist, 4th ID, shows: * the applicant was fully alert and oriented and thinking clear with normal thought content * his mood or affect was “crying” * he had the mental capacity to understand and participate in the proceedings and was mentally responsible * the psychiatrist did not mark the box indicating the applicant met the retention requirements of chapter 3, Army Regulation40-501 (Standards of Medical Fitness) * the applicant had been followed by 4th ID Mental Health for poor coping skills and depressive symptoms * he continued to deteriorate and was not improving, recently having had vague suicidal thoughts * * he felt the deployment was too stressful and based on his extensive mental health treatment without improvement, his expeditious separation per paragraph 5-17 was recommended * he was diagnosed with adjustment disorder with mixed anxiety and depressed moods 8. An undated memorandum shows the applicant was notified of the initiation of his separation under Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions. He was advised by consulting counsel of the basis for the contemplated action to separate him and its effects, the rights available to him, and the effect to any action taken by him in waiving his rights. He submitted statements in his own behalf, requested consulting counsel and representation, and acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. 9. On 11 August 2003, he wrote a statement in his behalf, in which he states: a. He was very unhappy with the situation he was in and truly did not wish to be discharged from the Army. The reasons he felt forced to agree with a discharge for other designated physical or mental conditions was the fact that he was not in control of his emotions, actions, or thoughts in the manner that he should be. He never knows how long it will be before he loses his bearing and makes an error in judgment that will be detrimental to himself or others. b. He did not want to go like this, but he felt he needed to get out of that deployed environment. It was bothersome to him that he felt he was not being given the medical treatment that he needed. He said this because he felt that MAJ X did not have the assets or the proper environment to correctly and knowledgably form conclusions on his mental health condition. He felt that this environment was not conducive to forming an accurate diagnosis or provide treatment for his condition. Would you hold an Alcoholics Anonymous meeting in a bar? Surely not. c. I disagree with MAJ X ’s conclusions and would like the opportunity to obtain a second opinion. He has been recognized for his excellent performance as a medic and was nominated for the Army Commendation Medal for his efforts in his MOS. He asked to be recommended for further treatment upon his return to the States. He was willing to volunteer to serve in an in-patient treatment program if deemed necessary. He would like a second opinion and further help. 10. On 14 August 2003, his immediate commander recommended him for separation under the provisions of Army Regulation 635-200, paragraph 5-17 and recommended his service be characterized as honorable. The reason for the action was the applicant’s diagnosis of adjustment disorder with mixed anxiety and depressed moods. 1. 11. On an unknown date, the applicant flew from Iraq to Fort Hood, TX, for eventual out-processing. Per written notes taken by an Army Psychiatrist, MAJ X , (which are included in the applicant’s discharge packet), MAJ X spoke with the applicant while on the plane from Iraq at the behest of the flight crew when the crew and the passengers became concerned by the applicant’s odd behavior, including psychomotor agitation, pacing up and down the aisles, and emotional lability. MAJ X states: a. The applicant complained of having racing thoughts, sleeping problems, sometimes going for day without sleeping, and inability to relax, mood swings, irritability, and poor concentration. He reported a family history of schizophrenia and bipolar disorder in family members. b. He noted the applicant had psychomotor agitation (pacing up and down the aisle), inability to sit still, and was predominantly anxious/depressed. He concluded the applicant was in a manic or mixed state manifested by pressured speech, psychomotor agitation, mood lability, distractibility, and racing thoughts. His history was strongly suspicious for bipolar disorder and he recommended the applicant’s hospitalization for treatment of his condition. c. MAJ X signed the psychiatric note as the “Army Psychiatrist who happened to be on the plane.” 12. On 15 August 2003, his brigade commander recommended approval of the separation for other designated physical or mental conditions, requested the re1quirements for further counseling and rehabilitation be waived, and recommended the characterization of his service as honorable. 13. Consistent with the chain of command's recommendations, the separation authority approved his discharge on 16 August 2003. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 18 September 2003 by reason of a "physical condition, not a disability" under the provisions of Army Regulation 635-200, paragraph 5-17. He completed 1 year, 2 months, and 23 days of net active service. 14. On 19 July 2017, the Army Review Boards Agency (ARBA) psychiatrist provided an advisory opinion. The ARBA psychiatrist stated: a. Notwithstanding the Army Regulation 635-200, paragraph 5-17 discharge, a review of his military records indicates he exhibited all of the classic signs of bipolar disorder while on active duty: insomnia, racing thoughts, emotional lability, extreme mood swings, tangential thought, poor concentration and inability to function. His DA Form 3822 indicates he did not meet the medical retention standards of Army Regulation 40-501, chapter 3. The applicant has been found by the Department of Veterans Affairs to have a 100 percent service-connected disability for bipolar disorders. b. Based on her review of the applicant’s records, it is clear he was suffering from a major psychiatric illness while on active duty, namely bipolar disorder, and as such, should have been processed through military medical channels and referred for an MEB. Therefore, it is the recommendation of the ARBA psychiatrist that the applicant’s records be referred to the integrated disability evaluation system for consideration of medical disability retirement. A copy of the complete medical advisory as provided to the Board for their review and consideration. 15. The applicant was provided a copy of the advisory opinion on 25 July 2017 and given an opportunity to submit comments, but he did not respond. 16. Army Regulation 635-200, paragraph 5-17, states commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. 17. 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 Army Regulation 40-501 (Standards of Medical Fitness), 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. 18. Army Regulation 635-40 establishes the Army Disability Evaluation System 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 1. contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states 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. b. Paragraph 3-4 states 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. 19. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that partial relief was warranted. Based upon the finding from the medical advisory stating it was clear he was suffering from a major psychiatric illness while on active duty, which should have been processed through military medical channels and referred for an MEB, the Board concluded that forwarding the medical records of the applicant to be considered in the Integrated Disability Evaluation System (IDES) for consideration of a medical retirement was appropriate. 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 relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by forwarding the medical records of the applicant to the Office of the Surgeon General to be considered in the Integrated Disability Evaluation System (IDES) for consideration of a medical retirement was appropriate. 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 characterization of service or the narrative reason for separation. 5/13/2019 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 635-200, paragraph 5-17, states commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. 3. 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. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), 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 disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/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 either are 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 retired pay and have access to all other benefits afforded to military retirees. a. c. 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. 4. Army Regulation 635-40 establishes the Army Disability Evaluation System 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 retirement or separation for disability. a. Paragraph 3-2 states 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. b. Paragraph 3-4 states 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. 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. The VA does not have the authority or responsibility for determining physical fitness for military service. 1. 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.