IN THE CASE OF: BOARD DATE: 6 August 2020 DOCKET NUMBER: AR20170013367 APPLICANT REQUESTS: through counsel, a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 11 page Brief with 19 enclosures FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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. In an 11-page brief counsel refers to governing regulations and contends, in effect: a. The applicant should be considered in accordance with the integrated disability evaluation system (IDES). The applicant's record indicates he suffered from a medical condition which supports his disability processing through IDES prior to his separation from active duty. After returning from deployment to Afghanistan in 2009 and during his out-processing physical numerous disqualifying conditions were identified which should have been considered by a medical evaluation board (MEB) to determine the nature and degree of physical disability present. His post-traumatic stress disorder (PTSD) symptoms were identified during various medical examinations conducted while he was on active duty; however, those conditions were never considered to determine his suitability for consideration of a service-connected impairment. b. Counsel also contends the Army diagnosed the applicant with an adjustment disorder rather than PTSD because it was the accepted procedure at the time; however, the Department of Veteran Affairs (VA) properly diagnosed him with PTSD prior to his separation. Based on the evidence of PTSD at the time of discharge, the treating doctor or the applicant's commander should have initiated a MEB. The applicant was treated in theater for an anxiety disorder in January 2009. Upon redeployment, he found himself struggling with symptoms of PTSD. He decided to resign at the end of his active duty obligation. Following his decision, he was placed in a new job where he did not need to interact with many people. The explanation for the move was his command understood he was suffering and could not perform his duties. c. The applicant is 100 percent disabled by the effects of PTSD. PTSD is a condition documented in the applicant's record and can be reasonably be determined to have existed at the time of discharge. Had he been properly evaluated and referred to a MEB, he would have been evaluated by the Army the same way he was evaluated by VA as required by IDES. He would have been found unfit and medically retired with benefits. The counsel's complete brief is available for the Board's review and consideration. 3. Counsel provides a 4 page personal statement from the applicant in which he outlines his military career and states, in part: a. Due to the daily overwhelming stress, constant adrenaline, heighten state of alert, routine lack of sleep, and lack of proper nutrition and hygiene, he began to isolate himself more and more. He became very easily irritated and angered, and began lashing out at people with no sense of self-control. He thought withdrawing from his Soldiers would make him feel a little better, but he fell into a deep state and cycle of extreme depression and anxiety. He became numb about life and death. He volunteered to go on more and more missions with no regard for his personal safety. b. He engaged in risky behavior trying to find outlets for his stress and extreme anger, anxiety, and depression. He routinely abused alcohol and destroyed personal relationships due to his behavior. He knew something was wrong, but he did not feel he could ask for help while in the Army. There was a real stigma in 2010 against Soldiers who asked for mental health help. He was a medical officer and to admit he was dealing with PTSD would be risking his job, leadership position, and reputation. He knew in his heart he needed help and felt he could not perform his duties so he decided to resign his commission in 2010. Prior to his separation he underwent a sleep study and a hearing test. The sleep study showed he was experiencing symptoms of PTSD and the hearing test showed tinnitus and some hearing loss. He received an initial disability rating of 40 percent from VA. c. He goes on to explain the struggles he's had since leaving the military. He further states this letter has been an overwhelming undertaking for him. He finds it very difficult at times to characterize his own behavior and to remember events of the past with sufficient details. His wife often deals with painful memories and it is a constant struggle for them to maintain equilibrium to move forward. His combat-related PTSD abruptly ended his successful Army career. From the time he graduated high school and attended Reserve Officers' Training Corps, his only plans were to climb the ranks in the Army and retire. PTSD has negatively impacted his ability to gain and maintain employment in tremendous ways. He is also unable to handle a lot of everyday responsibilities and tasks. He rely on his wife to lead and handle most household responsibilities because he is too easily stressed by them. It has also had a lasting effect on his health. The applicant's complete statement is available for the Board's review and consideration. 4. On 5 August 2006, the applicant was appointed a Reserve Commissioned Officer in the U.S. Army and entered active duty the same day. He served in Afghanistan from 19 March 2008 through 27 March 2009. 5. The applicant's officer evaluation reports (OERs) from the period 11 July 2007 through 17 June 2010 show the applicant's performance and potential was rated as "Outstanding Performance-Must Promote, and his potential for promotion to the next grade was rated as "Best Qualified." 6. On 1 September 2010, the applicant was discharged under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges) due to miscellaneous/general reasons. He completed 4 years and 27 days of net active service this period. He was awarded or authorized: * Afghanistan Campaign Medal with Campaign Star * Bronze Star Medal * Army Commendation Medal (2nd Award) * Army Achievement Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon * NATO Medal * Combat Medical Badge * Parachutist Badge * Air Assault Badge 7. His record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or underwent a MEB or a PEB during his period of active duty. 8. Counsel provides a letter from VA, dated 29 April 2017, showing the applicant has a 100 percent service-connected disability rating. He also provides a letter of support for the applicant from R. stating, in effect, he noticed a change in the applicant's behavior after deployment. The VA letter and the letter of support are available for the Board's review and consideration. 9. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) and Health Artifacts Image Management Solutions (HAIMS) indicates he was first seen on 30 March 2007 due to symptoms of attention deficit and hyperactivity disorder. He reported “wigging out in Walmart if there is too much going on.” On 12 January 2009, he was seen for “extreme anxiety in social settings with more than a few people.” He reported being in a stressful position with high levels of responsibility. He was diagnosed with anxiety disorder (not otherwise specified) and prescribed Paxil. On 20 May 2010, he was seen for an intake due to anger issues, insomnia, and isolation. He reported being angry since his 2008-2009 deployment, losing $50,000 in the stock market, and breaking objects in anger. During his follow-up appointment on 25 May 2010, he reported avoiding crowds and increased arguing with his spouse. He noted he would start terminal leave in July 2010. On 23 June 2010, he reported feeling hopeless about the future and lack of motivation. He reported apprehension about leaving the military. On 29 June 2010, he reported anxiousness about leaving the military and some improvement in depressed mood. He reported concerns about his financial future. He was diagnosed with adjustment disorder. His diagnoses were consistent with symptoms he reported to his treating providers prior to his discharge. A review of the VA’s Joint Legacy Viewer (JLV) indicates he received a service connected disability rating of 40% with 30% for PTSD effective 20 July 2010. His service connected disability rating was increased to 100% for PTSD effective 1 December 2016. There is documentation to support a behavioral health condition at the time of his discharge. It is important to understand that the VA operates under different rules, laws, and regulations when assigning disability percentages than the Department of Defense (DoD). In essence, the VA will compensate for all disabilities felt to be unsuiting. The DoD does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting. A review of his OERs indicates he was rated as "outstanding performance," "must promote," and "best qualified" for all evaluations from 2007 through his discharge in 2010. In addition, the role of compensating for post-separation progression or complications of service-connected conditions was granted by Congress to the VA and is not a function or role of the DoD. The applicant’s symptoms worsened significantly from his discharge in 2010 to the VA increasing his disability rating in 2015 to 100% for PTSD. Given the initial rating of 30% for PTSD in 2010 at the time of his discharge, it is recommended that his case be referred to the Disability Evaluation System for review. 10. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES 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. 11. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635-40. 12. Directive-Type Memorandum (DTM) 11-015 – Integrated Disability Evaluation, dated 19 December 2011, establishes policy, assigns responsibilities, and prescribes procedures for the IDES, which superseded the legacy Disability Evaluation System (DES). It provides that service members whose cases were initiated under the legacy DES process will not enter the IDES. 13. 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. 14. 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. 15. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 16. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 17. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that partial relief is warranted. 2. The Board noted the ARBA Medical Advisor's observation that the applicant received a 30% service connected disability rating for PTSD from the VA within weeks of his discharge. The Board agreed that this is sufficient as a basis for referring his records to the IDES for review to determine if he should have been processed through that system and to take any action deemed appropriate based on that review. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XXX :XX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to the Office of The Surgeon General for review to determine if he should have been referred to the Disability Evaluation System prior to his discharge. a. If a review by the Office of The Surgeon General determines the evidence supports referral to the Disability Evaluation System, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any diagnoses identified as having not met retention standards prior to his discharge. b. In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should be retired for disability, these proceedings serve as the authority to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief without benefit of the review described above. 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. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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. 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. 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. 3. 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. 4. DTM 11-015 – Integrated Disability Evaluation, dated 19 December 2011, establishes policy, assigns responsibilities, and prescribes procedures for the IDES, which is superseding the legacy DES. It specifies all newly initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. Under the IDES the PEB applies the VA provided ratings to the service member’s unfitting conditions. 5. 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, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013367 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1