ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20170017653 APPLICANT REQUESTS: his honorable discharge be changed to retired medical APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Veterans Affairs (VA) Rating Letter * DA Form 2166-8 (NCO Evaluation Report) (4) Front Page Only * DD Form 214 (Certificate of Release or Discharge from Active Duty) (2) * Applicant Rebuttal 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 he would like his discharge to be changed from an honorable discharge to medically retire. He sustained injuries from a blast while he was deployed in 2003 to Iraq. The VA has since rated his disabilities at 100% with Post Traumatic Stress Disorder (PTSD); shrapnel wound left leg; TBI; Seizure secondary to TBI; left knee anterior synovitis; irritable bowel; posttraumatic degenerative joint disease right ankle; scar shrapnel; myofascial strain cervical spine; lung mass; bilateral hearing loss; tinnitus; posttraumatic subacromial bursitis, left shoulder; posttraumatic degenerative disease, right elbow. See attached VA rating decision dated 17 August 2017. 3. The applicant provides: a. A letter from Veterans Affairs dated, 17 August 2017, which provides the rating he received. b. Four DA Form 2166-8 (NCO Evaluation Report) highlighting his daily duties and responsibilities in combat. a. c. DD Form 214 (2) which captures his military service. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 16 May 1995, and reenlistment on 21 May 1998. b. On 20 May 2004, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 4, with an honorable discharge (completion of required active service), he completed 9 years and 5 days of active service. 5. The Case Management Division (CMD) requested a medical advisory of this case for alleged medical condition(s) warranted separation through medical channels. The medical advisory opinion states: a. A review of the applicant's electronic medical record (AHLTA) revealed no medical records in AHLTA. The applicant's paper Service Treatment Record (STR) was not available for review from the National Personnel Records Center (NPRC) at the National Archives and Records Administration (NARA). The applicant's iPERMS (Interactive Personnel Electronic Records Management System) records were available. They showed he was RE 1 at discharge and had good NCOERs, indicating good occupational functioning. The applicant has provided ample evidence of current VA SC disabilities. He has not provided evidence of boardable medical conditions during his service. b. Limited review of VA (Veteran's Administration) records through the JLV (Joint Legacy Viewer) with records showing a VA SC disability percentage of 100%. During his service, his post-deployment questionnaire of 19 August 2005 showed combat exposure in Iraq, including seeing dead enemy, US, and coalition forces. His VA Problem List includes BH diagnoses of Anxiety Disorder NOS, Bipolar Disorder (June 2017), NOS, Obstructive Sleep Apnea, Concussion with Loss of Consciousness of 30 minutes or less, IBS, Obesity, Dysthymia PTSD (Feb 2009), Tobacco Use Disorder, PTSD (March 2006), and Nicotine Dependence. A VA exam on 18 February 2004 showed a number of VA SC disabilities, with PTSD rated 70% at that time. c. On 16 February 2006, he returned and complained of the impact his PTSD symptoms were having on him, and his sense that he had not been the same since his deployment to Iraq. He was evaluated for a TBI on 16 March 2016, with the examiner concluding he had sustained a mild TBI with the examiner concluding "symptoms are subjective and do not appear to interfere with functioning." A disability examination of VA on 18 March 2009 cited earlier medical findings. d. This entire exam did not include findings consistent with the notion that the applicant had, during his service, reached a Medical Retention Decision Point at the time of his discharge. His records did seem to show deterioration in his condition over a. time, which is reflected in increasing VA SC disability percentages. He had Disability Evaluation on 18 March 2009, which is referred to as his "Initial Evaluation for PTSD." At that time, he had a PCLM Score of 40 and MISS score of 88-two measures of PTSD- with both scores "inconsistent with PTSD." The examiner concluded "Veteran does not meet criteria for PTSD accord to tests, but does have almost enough sx's [symptoms] for dx [diagnosis] according to interview." Criteria C was identified as not having been met. PTSD was NOT diagnosed as a result of this interview, but "features of PTSD, secondary to combat" was. The examiner does not appear to have attempted to integrate his interview and testing. There was also some uncertainty about the validity of the MCMI, a measure of personality organization and pathology. A NP reinstated a PTSD diagnosis on 30 July 2012. e. Escalating concerns about the TBI also reemerged as a topic of clinical concern in November 2012, but without reference to his earlier TBI neuropsychology results. PTSD was described as "stable" on 05 March 2005. The VA records also showed one psychiatric hospitalization that occurred in 2017, because of suicidal ideation. During 2017, the applicant appears to be having intensifying neurological problems that are reflected in neurology outpatient contacts. VA records also show he was placed on Lithium and Hydroxycarbazepin in September 2017, agents that are often used as mood stabilizers. f. Does the available record reasonably support PTSD or another boardable behavioral health condition(s) existed at the time of the applicant's military service? No, as that hypothesis is at odds with the results of his initial evaluation for PTSD. His PTSD diagnosis was something that emerged and was confirmed after his discharge, even though it is reasonable to believe he had symptoms that are part of the clinical picture of PTSD. He was also discharged with an RE code of 1. He also never reached any Medical Retention Decision Points. g. Did this condition(s) fail medical retention standards IAW (in accordance with) Army Regulation (AR) 40-501, warranting a separation through medical channels? N/A. Were BH (behavioral health) conditions present at time of misconduct? N/A. Were BH conditions mitigating for the misconduct? N/A. IAW Title 10 Section 1177 (signed into law 28 Oct 09), was a BH evaluation conducted prior to the admin separation of the Applicant? N/A. h. The applicant met medical retention standards IAW Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. The applicant's medical conditions were duly considered during medical separation processing. i. A review of the available documentation found INSUFFICIENT evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. a. 6. The Army Review Boards Agency provided the applicant with a copy of the medical advisory, dated 2 January 2018. 7. On 19 January 2018, the applicant submitted a rebuttal to the Medical Advisory which states: a. He didn't know what those codes meant when I got out of the service but understand them now. I feel that I wasn't a REl when I got out of the service. An RE code refers to a person entire military service and how the military views a service member upon departure from the service. When I was discharged I had good service records and the military felt that my medical needs were taken care of. The military didn't complete a medical review board on me because I was so close to getting out of the service. b. The military looked at the physical injuries when I was getting out and they felt that those injuries were addressed and resolved. When I was discharged no one really knew a lot about Traumatic Brain Injuries (TBI) and the effects from TBI. Also, PTSD was just coming to light in the military and no one really understood the symptoms and the effects it has on service members (complete rebuttal statement). 8. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement or Separation) establishes the Army Disability Evaluation System (DES) 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. It states that 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 9. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions, medical concerns, the advisory opinion and his rebuttal, were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. Based upon the record, the agreed with the advisory that there is insufficient evidence that shows he had a boardable condition during his period of service that would warranted referral to medical evaluation board. 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. 25 June 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. 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 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. 1. 2. AR 635-40 (Disability Evaluation for Retention, Retirement or Separation) establishes the Army Disability Evaluation System (DES) 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. It states that 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. 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. 3. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS//