ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF:  

		BOARD DATE:  6 July 2020

		DOCKET NUMBER:  AR20170017846


APPLICANT REQUESTS:

	a.  correction of his records to show he was medically retired due to battle-related 
post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) and placed on 
the Permanent Disability Retired List, and

	b.  retroactive payment of retired pay.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record under the Provisions 
of Title 10, U.S. Code, Section 1552)
*	Legal Brief in Support of Application to Correct Military Records (18 pages)
*	Exhibit A – Medical Records (128 pages)
*	Exhibit B – Declaration of (Applicant)
*	Separation Packet
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Veteran's Examination, Department of Veterans Affairs (VA) Regional Medical 
Center, dated 21 November 2008
*	VA Rating Decision, dated 12 December 2008
*	VA Rating Decision, dated 16 June 2014

REFERENCES:

1.  Title 10, U.S. Code, 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 40-400 (Patient Administration), in effect at the time, assigned 
responsibilities and provided guidance on patient administration in Army regional 
medical commands and military treatment facilities.  Paragraph 7-5b (Use of Medical 
Evaluation Boards) states situations that require medical evaluation board (MEB) 
consideration are those involving patients whose medical fitness for return to duty is 
questionable, problematical, or controversial.  When a member's fitness for further 
military duty is questionable, it becomes essential that all abnormalities in his or her 
condition be thoroughly evaluated.  Under these conditions, evaluation will be 
undertaken only in a medical treatment facility that has the necessary professional 
staffing and equipment.

3.  Army Regulation 40-501 (Medical Services Standards of Medical Fitness), in effect 
at the time, governed medical fitness standards for enlistment, induction, and 
appointment, retention, separation (including retirement), certain enlisted military 
occupational specialties and officer assignments, physical profiles, and medical 
examinations and periodic health assessments.

	a.  Paragraph 3-3d (Disposition), physicians who identify Soldiers with medical 
conditions listed in this chapter should initiate an MEB at the time of identification. 
Physicians should not defer initiating the MEB until the Soldier is being processed for 
non-disability retirement.  

	b.  Paragraph 3–30 (Neurological disorders), the causes for referral to an MEB are 
but not limited to, any other neurologic conditions, TBI or other etiology, when after 
adequate treatment there remains residual symptoms and impairments such as 
persistent severe headaches, uncontrolled seizures, weakness, paralysis, or atrophy of 
important muscle groups, deformity, un-coordination, tremor, pain, or sensory 
disturbance, alteration of consciousness, speech, personality, or mental function of such 
a degree as to significantly interfere with performance of duty.

	c.  Paragraph 3-31 (Disorders with Psychotic Features) stated the causes for referral 
to an MEB are mental disorders not secondary to intoxication, infectious, toxic, or other 
organic causes, with gross impairment in reality testing, resulting in interference with 
duty or social adjustment.

	d.  Paragraph 3-32 (Mood Disorders) stated the causes for referral to an MEB are as 
follows:

*	persistence or recurrence of symptoms sufficient to require extended or 
recurrent hospitalization
*	persistence or recurrence of symptoms necessitating limitations of duty or 
duty in protected environment
*	persistence or recurrence of symptoms resulting in interference with effective 
military performance

	d.  Paragraph 3–33 (Anxiety, somatoform, or dissociative disorders), the causes for 
referral to an MEB are as follows:
*	persistence or recurrence of symptoms sufficient to require extended or 
recurrent hospitalization
*	persistence or recurrence of symptoms necessitating limitations of duty or 
duty in protected environment
*	persistence or recurrence of symptoms resulting in interference with effective 
military performance

4.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation), in effect at the time, governed the evaluation for physical fitness of Soldiers 
who may be unfit to perform their military duties because of physical disability.  It 
established the Army Physical Disability Evaluation System (DES) according to the 
provisions of Title 10, U.S. Code, chapter 61, and Department of Defense (DOD) 
Directive 1332.18.  It set 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 provided for disposition of the Soldier 
according to applicable laws and regulations.  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 his or her office, grade, rank, or rating.

5.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect 
at the time, set forth the basic policy for the separation of enlisted personnel.  
Paragraph 5-17 (Other Designated Physical or Mental Conditions) stated commanders 
may approve separation under this paragraph on the basis of other physical or mental 
conditions not amounting to disability and excluding conditions appropriate for 
separation processing under paragraph 5-11 (Separation of Personnel Who Did Not 
Meet Procurement Medical Fitness Standards) or paragraph 5-13 (Separation Because 
of Personality Disorder) that potentially interfere with assignment to or performance of 
duty.

	a.  Such conditions may include, but are not limited to:

		(1)  chronic airsickness;

		(2)  chronic seasickness;

		(3)  enuresis;

		(4)  sleepwalking;

		(5)  dyslexia;
		(6)  severe nightmares;

		(7)  claustrophobia; and

		(8)  other disorders manifesting disturbances of perception, thinking, emotional 
control, or behavior sufficiently severe that the Soldier's ability to effectively perform 
military duties is significantly impaired.  For Soldiers who have been deployed to an 
area designated as an imminent danger pay area, the diagnosis of personality disorder 
must be corroborated by the military treatment facility Chief of Behavioral Health (or an 
equivalent official).  The corroborated diagnosis will be forwarded for final review and 
confirmation by the Director, Proponency of Behavioral Health, Office of the Surgeon 
General.  Medical review of the personality disorder diagnosis will consider whether 
PTSD, TBI, and/or other comorbid mental illness may be significant contributing factors 
to the diagnosis.  If PTSD, TBI, and/or other comorbid mental illness are significant 
contributing factors to a mental health diagnosis, the Soldier will not be processed for 
separation under this paragraph, but will be evaluated under the Physical Disability 
System in accordance with Army Regulation 635-40.

	b.  When a commander determines that a Soldier has a physical or mental condition 
that potentially interferes with assignment to or performance of duty, the commander will 
refer the Soldier for a medical examination and/or mental status evaluation in 
accordance with Army Regulation 40-501.  A recommendation for separation must be 
supported by documentation confirming the existence of the physical or mental 
condition.

	c.  Separation processing may not be initiated under this paragraph until the Soldier 
has been counseled formally concerning deficiencies and has been afforded ample 
opportunity to overcome those deficiencies as reflected in appropriate counseling or 
personnel records.

6.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the 
policies and procedures for preparing and distributing the DD Form 214.  The specific 
instructions for item 28 (Narrative Reason for Separation) stated this is based on 
regulatory or other authority and can be checked against the cross reference in Army 
Regulation 635-5-1 (Separation Program Designator (SPD) Codes).

7.  Army Regulation 635-5-1, in effect at the time, prescribed the specific authorities 
(statutory or other directives), reasons for separating Soldiers from active duty, and the 
SPD codes to be entered on DD Form 214.  Table 2-3 (SPD Codes Applicable to 
Enlisted Personnel) shows SPD code JFV represents "Condition, Not a Disability" and 
the regulatory authority as Army Regulation 635-200, paragraph 5-17.

8.  Title 10, U.S. Code, section 1203 (Regulars and Members on Active Duty for More 
than 30 Days:  Separation), states:

	a.  Separation.  Upon a determination by the Secretary concerned that a member 
described in section 1201(c) of this title is unfit to perform the duties of the member's 
office, grade, rank, or rating because of physical disability incurred while entitled to 
basic pay or while absent as described in section 1201(c)(3) of this title, the member 
may be separated from the member's Armed Force, with severance pay computed 
under section 1212 of this title, if the Secretary also makes the determinations with 
respect to the member and that disability specified below.

	b.  Required Determinations of Disability.  Determinations referred to above are 
determinations by the Secretary that:

		(1)  the member has less than 20 years of service computed under section 1208 
of this title;

		(2)  the disability is not the result of the member's intentional misconduct or willful 
neglect, and was not incurred during a period of unauthorized absence;

		(3)  based upon accepted medical principles, the disability is or may be of a 
permanent nature; and

		(4)  either:

		(a)  the disability is less than 30 percent under the Schedule of Rating Disabilities 
in use by the VA at the time of the determination, and the disability was the proximate 
result of performing active duty, incurred in the line of duty in time of war or national 
emergency, or incurred in the line of duty after 14 September 1978;

		(b)  the disability is less than 30 percent under the standard Schedule of Rating 
Disabilities in use by the VA at the time of the determination, and the member has at 
least 8 years of service computed under section 1208 of this title, or

		(c)  the disability is at least 30 percent under the Schedule of Rating Disabilities 
in use by the VA at the time of the determination, the disability was neither the 
proximate result of performing active duty, incurred in the line of duty in time of war or 
national emergency, nor incurred in the line of duty after 14 September 1978, and the 
member has less than 8 years of service computed under section 1208 of this title on 
the date when he would otherwise be retired under section 1201 of this title or placed on 
the Temporary Disability Retired List under section 1202 of this title.

	c.  However, if the member is eligible for transfer to the Inactive Status List under 
section 1209 of this title and so elects, he or she shall be transferred to that list instead 
of being separated.

9.  The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, 
addresses trauma and stress or related disorders.  The DSM is published by the 
American Psychiatric Association (APA) and provides standard criteria and common 
language for classification of mental disorders.

	a.  In 1980, the APA added PTSD to the third edition of its DSM nosologic 
classification scheme.  Although controversial when first introduced, the PTSD 
diagnosis has filled an important gap in psychiatric theory and practice.  From a 
historical perspective, the significant change ushered in by the PTSD concept was the 
stipulation that the etiological agent was outside the individual (i.e., a traumatic event) 
rather than an inherent individual weakness (i.e., a traumatic neurosis).  The key to 
understanding the scientific basis and clinical expression of PTSD is the concept of 
"trauma."

	b.  The fifth edition of the DSM was released in May 2013.  This revision includes 
changes to the diagnostic criteria for PTSD and acute stress disorder.  The PTSD 
diagnostic criteria were revised to take into account things that have been learned from 
scientific research and clinical experience.  The revised diagnostic criteria for PTSD 
include a history of exposure to a traumatic event that meets specific stipulations and 
symptoms from each of four symptom clusters:  intrusion, avoidance, negative 
alterations in cognitions and mood, and alterations in arousal and reactivity.  The sixth 
criterion concerns duration of symptoms, the seventh criterion assesses functioning, 
and the eighth criterion clarifies symptoms as not attributable to a substance or co-
occurring medical condition.

10.  On 3 September 2014 in view of the foregoing information, 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 PTSD 
criteria, detailed medical considerations, and mitigating factors when taking action on 
applications from former service members administratively discharged under other than 
honorable conditions 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 applicants' service.

11.  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, 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, on 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.

12.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to 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 court-martial forum.  However, the 
guidance applies to more than clemency from a sentencing in a court-martial; it also 
applies to any other corrections, including changes in a discharge, which may be 
warranted on equity or relief from injustice grounds.  This guidance does not mandate 
relief, but rather provides standards and principles to guide BCM/NRs in application of 
their equitable relief authority.  In determining whether to grant relief on the basis of 
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.

FACTS:

1.  The applicant did not file within the 3-year time frame as provided in Title 10, 
U.S. 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.  The applicant states his records should be corrected based on his disability rating for 
PTSD exceeding 30 percent.  His records reflect he was separated for "adjustment 
disorder with anxiety and depressed mood" (see DA Form 3822-R (Report of Mental 
Status Evaluation)).  The evidence is clear that he was suffering from PTSD exceeding 
30 percent prior to and at the time of his discharge.  He defers to counsel for 
presentation of evidence in support of his request.

3.  Counsel states the applicant was improperly administratively separated for a 
"condition, not a disability" when his medical and military records clearly establish that 
he suffered from debilitating PTSD and a TBI secondary to his military service.


	a.  The applicant's administrative separation was in error, particularly because the 
U.S. Army failed to follow its own protocol when it declined to submit the applicant to 
examinations by an MEB and a physical evaluation board (PEB).  It is unquestionable 
that had an MEB and PEB evaluated the applicant, they would have determined that he 
was more than 30-percent disabled and unfit for further military service due to his PTSD 
and TBI.  Because the U.S. Army failed to properly evaluate the applicant's PTSD and 
TBI, he has been denied monthly military disability retirement income and Tricare 
benefits to which he and his family are entitled.

	b.  During his military service, he served in Iraq for almost 14 months – a designated 
imminent danger area – from 4 August 2006 to 1 October 2007.

	c.  In-Service Evidence of Disability:

		(1)  The applicant had a "normal" psychiatric profile with no personality 
deviations, which is clearly stated in his pre-admission physical examination (see 
Report of Medical Examination).  The applicant showed "no psychological symptoms" 
during his military entrance processing examination on 24 January 2006 (see 
Standard Form 600 (Chronological Record of Medical Care), dated 24 January 2006).

		(2)  The applicant's psychiatric profile remained unchanged until 17 October 
2006, the onset date of his PTSD (see Medical Record, page 75, dated 19 March 2007).  
His reported history states "no psychiatric history Other [sic] than his recent evaluation 
from Captain R____."

		(3)  The applicant was subsequently examined seven more times within a 2-week 
span, each time receiving a diagnosis of battle-related acute PTSD (see Medical 
Record, pages 61 and 63-65, dated 31 March 2007, and Standard Form 600).

		(4)  His next diagnosis of PTSD came on 4 October 2007 when he was seen by 
Dr. T____ (see Medical Record, page 13, dated 5 June 2017).  Yet on 5 October 2007 – 
not 1 day after Dr. T____'s diagnosis – a social worker opined that the applicant was 
suffering from PTSD.  Dr. T____ inexplicably changed his diagnosis to "adjustment 
disorder with anxiety and depressed mood" and post-concussion syndrome (see 
Medical Records, pages 13 and 14, dated 5 June 2017).

		(5)  Five days later, on 10 October 2007, a neurologist opined that the applicant 
likely suffered from post-concussion syndrome due to a TBI, but made no mention of an 
adjustment disorder (see Standard Form 600).

		(6)  The applicant was subsequently diagnosed with PTSD on nine separate 
occasions between 3 March and 30 April 2008 (see Medical Record, pages 14 and 15).

		(7)  On 8 May 2008, the applicant's commanding officer, Captain W____, wrote a 
duty memorandum stating he believed the applicant was "unable to perform as a Soldier 
in the U.S. Army due to having a Designed [sic] Physical or Mental Condition"(see Duty 
Memorandum).  Captain W____ went on to state "the applicant has many psychological 
and personal issues which prevent him from serving as a part of the Army team."  No 
mention was made, however, of the nearly 20 times the applicant was diagnosed with 
PTSD between October 2007 and April 2008.

	d.  Post-Service Evidence of Disability:

		(1)  On 21 November 2008, shortly after the applicant was discharged, he was 
examined by Dr. K____ and was diagnosed with "PTSD with features of depression and 
panic attacks" (see VA Veteran's Examination).

		(2)  On 12 December 2008, the VA granted the applicant service connection for 
his disabilities (see VA Rating Decision).

	(3)  On 10 December 2013, the applicant was seen at the VA Medical Center for 
a Mental Health Access/Crisis Diagnostic Interview based on increased symptoms of 
PTSD (see Medical Progress Notes, page 171).

		(4)  On 16 June 2014, the VA continued the applicant's PTSD and TBI service-
connected disabilities (see VA Rating Decision).

	e.  Arguments:

		(1)  A Soldier must be medically retired when he is "unfit to perform the duties of 
office...because of physical disability."

		(2)  Based on the manifest weight of the evidence, the applicant should have 
been medically discharged due to his disabling PTSD and TBI, or at the very least 
placed on the Temporary Disability Retired List.

		(3)  From the onset of the applicant's symptoms on 17 October 2006 to the date 
his psychiatrist, Dr.  J____, recommended his administrative discharge on 12 May 
2008, the applicant was only diagnosed with an adjustment disorder on one occasion 
and that errant diagnosis was rendered by a social worker, not a psychiatrist or 
doctoral-level clinical psychologist (see Medical Record, page 13, 2007).  Conversely, 
he was diagnosed with PTSD 24 times within that same time frame, several of which 
were issued by Dr. J____ himself (see Medical Record, page 13, 2007).  The applicant's 
discharge appears to have been based entirely on Dr. J____'s recommendation.

		(4)  Separation for an adjustment disorder pursuant to Army Regulation 635-200, 
paragraph 5-17c, "may not be initiated...until the Soldier has been counseled formally 
concerning deficiencies and has been afforded ample opportunity to overcome those 
deficiencies as reflected in appropriate counseling or personnel records."  U.S. District 
Courts have interpreted this provision to allow at least 6 months of counseling to 
determine if a Soldier in fact suffers from an adjustment disorder (refer to Cowles versus 
McHugh, U.S. District Court, District of Connecticut, dated 4 November 2014).  As made 
clear in Dr. J____'s recommendation, however, the applicant's first counseling session 
following his adjustment disorder diagnosis was not until 3 March 2008 when he began 
"treatment of depression and anxiety issues related in part to his previous combat 
experiences" at the Schweinfurt Behavioral Health Clinic (see DA Form 3822-R (Report 
of Mental Status Evaluation)).  A 2-month time span does not reflect that the applicant 
was given "ample opportunity to overcome his deficiencies."  Further, the counseling 
records during that time show he was diagnosed with PTSD on nearly 10 different visits, 
but the records never confirm that he was suffering from an adjustment disorder (see 
Medical Record, page 14).

	(5)  Further, "[a] recommendation for separation must be supported by 
documentation confirming the existence of the physical or mental condition" per Army 
Regulation 635-200, paragraph 5-17b.

	(6)  Dr. J____ failed to consider whether "PTSD, TBI, and/or other comorbid 
mental illness may be significant contributing factors to the [adjustment disorder] 
diagnosis."

		(7)  Per Army Regulation 635-200, paragraph 5-17a(8), a veteran may not be 
processed for discharge for adjustment disorder if PTSD or TBI "are significant 
contributing factors to a mental health diagnosis."

		(8)  Army Regulation 40-400, paragraph 7-5b(3), provides that a Soldier should 
be referred to an MEB if the Soldier's "medical fitness for return to duty is questionable, 
problematical, or controversial."

		(9)  The applicant was first diagnosed with severe PTSD while still in service on 
19 March 2007 (see Medical Record, page 75, dated 19 March 2007).

		(10)  Army Regulation 40-501 provides that anxiety disorders such as PTSD fall 
below retention standards if the conditions interfere with effective military performance.

		(11)  The fact that the applicant's administrative separation was recommended 
per Army Regulation 635-200, paragraph 5-17, leads to the conclusion that his 
symptoms hindered his ability to perform his military duties (see Duty Memorandum).

		(12)  Within 5 months after his discharge, the VA evaluated the applicant's PTSD 
as 100-percent disabling effective 10 July 2008 (1 day after his discharge) (see VA 
Rating Decision).

		(13)  The VA's findings, which remain unchanged, support the conclusion that the 
applicant should have been given at least a 50-percent disability rating by a PEB and 
then seen for a follow-up examination to determine whether a change in evaluation was 
warranted.

	f.  Conclusion:  For reasons unknown, the applicant's case was never processed by 
an MEB or PEB.  Had it been, the applicant undoubtedly would have been found unfit 
for further military service due to his disability that clearly exceeded 30 percent, thereby 
entitling him to monthly military disability retirement and Tricare benefits.  Instead, with 
negligible supporting documentation, the applicant was administratively discharged for 
an adjustment disorder.

4.  The applicant provided a detailed self-authored declaration wherein he describes his 
military service and personal experiences (see exhibit B).

5.  He enlisted in the Regular Army on 17 August 2005.  He completed basic combat 
and advanced individual training and was awarded military occupational specialty 11B 
(Infantryman).

6.  He deployed to Iraq from 4 August 2006 to 1 October 2007.

7.  On 8 May 2008, the applicant's immediate commander stated in a memorandum for 
record that the applicant was unable to perform as a Soldier in the U.S. Army due to 
having a designated physical or mental condition while being assigned to Company C, 
2nd Battalion, 28th Infantry Regiment.  The applicant had many psychological and 
personal issues which prevented him from serving as a part of the Army team.  The 
applicant was an infantryman and some, but not all, of his basic responsibilities were to:

*	perform duties as a Bradley fighting vehicle driver, gunner, or a fire team leader
*	operate both mounted and dismounted to close with and destroy the enemy
*	employ, operate, and maintain weapon systems and equipment
*	employ proper dismounted movement techniques
*	perform basic communication functions and operate platoon communication 
equipment
*	construct individual fighting positions
*	assist in the breeching of obstacles
*	collect and report tactical information as a member of combat or reconnaissance 
patrol

8.  The applicant's DA Form 3822 (Report of Mental Status Evaluation), dated 12 May 
2008, shows the examining psychiatrist determined the applicant met medical retention 
standards in accordance with Army Regulation 40-501 and cleared the applicant for 
administrative separation under the provisions of Army Regulation 635-200, 
paragraph 5-17.

9.  The DA Form 4856 (Developmental Counseling Form) (page 1only), dated 13 May 
2008, states the applicant was counseled by Sergeant R____ and informed that 
administrative separation action was initiated against him under the provisions of Army 
Regulation 635-200, paragraph 5-17.

10.  The DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 
14 May 2008, shows a flag was initiated against the applicant's records effective 14 May 
2008 for elimination (field initiated).

11.  On 3 June 2008, his immediate commander notified him that he was initiating 
action to separate him for other designated physical or mental conditions under the 
provisions of Army Regulation 635-200, paragraph 5-17.

	a.  The reason for the proposed action was that the applicant was evaluated at the 
Schweinfurt Behavioral Health Clinic and found to have an adjustment disorder with 
anxiety and depressed mood.  His condition would have worsened if he remained in the 
military.

	b.  The commander recommended characterization of his service as honorable.

	c.  The commander advised him of his rights to:

*	consult with counsel and/or retain civilian counsel at no expense to the 
Government
*	obtain copies of the documents that would be sent to the separation authority 
supporting the proposed separation
*	waive any of the above rights

12.  On 3 June 2008, the applicant acknowledged receipt of the proposed action to 
separate him under the provisions of Army Regulation 635-200, paragraph 5-17.

13.  On 3 June 2008, the applicant consulted with legal counsel and was advised of the 
contemplated action to separate him for personality disorder under the provisions of 
Army Regulation 635-200, paragraph 5-17, and its effects; the rights available to him; 
and the effect of any action taken by him in waiving his rights.  He did not submit a 
statement in his own behalf.  He declined counsel.  He acknowledged:

*	he understood that if he had less than 6 years of total Active and Reserve service 
at the time of separation, he was not entitled to have his case heard by an 
administrative separation board unless he was being considered for separation 
under other than honorable conditions
*	he understood he could expect to encounter substantial prejudice in civilian life if 
a general discharge under honorable conditions
*	he understood that as the result of issuance of a discharge under other than 
honorable conditions, he may be ineligible for many or all benefits as a veteran 
under both Federal and State laws and he may expect to encounter substantial 
prejudice in civilian life
*	he understood if he received a discharge/character of service that is less than 
honorable, he may apply to the Army Discharge Review Board or the ABCMR for 
upgrading
*	he realized that consideration by either board did not imply that his discharge 
would be upgraded

14.  On 3 and 6 June 2008, his immediate and regimental commanders recommended 
his separation prior to his expiration term of service under the provisions of Army 
Regulation 635-200, paragraph 5-17, for other designed physical or mental conditions.  
They recommended characterization of his service as honorable.

15.  On 25 June 2008, the separation authority directed his discharge under the 
provisions of Army Regulation 635-200, paragraph 5-17, and characterization of his 
service as honorable.  The applicant was not transferred to the Individual Ready 
Reserve per Army Regulation 635-200, paragraph 1-35.

16.  On 9 July 2008, he was honorably discharged.  He completed 2 years, 10 months, 
and 23 days of net active service during this period.  His DD Form 214 shows in:

*	item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons 
Awarded or Authorized) –

*	Iraq Campaign Medal
*	Army Commendation Medal
*	Purple Heart
*	National Defense Service Medal
*	Global War on Terrorism Service Medal
*	Army Service Ribbon
*	Overseas Service Ribbon (2nd Award)
*	Combat Infantryman Badge



*	item 25 (Separation Authority) – Army Regulation 635-200, paragraph 5-17
*	item 26 (Separation Code) – JFV
*	item 28 (Narrative Reason for Separation) – Condition, Not a Disability

17.  The applicant's VA Veteran's Examination, dated 21 November 2008, shows he 
was diagnosed with PTSD with features of depression and panic attacks.

18.  The applicant's VA Rating Decision letter, dated 12 December 2008, shows 
service-connected ratings for the following conditions:

*	10 July 2008 – PTSD – 100 percent
*	10 July 2008 – TBI with residual headaches –10 percent
*	10 July 2008 – thoracic and lumbar strain – 10 percent
*	10 July 2008 – cervical strain – 10 percent

19.  The applicant's VA Rating Decision letter, dated 16 June 2014, shows service-
connected ratings for the following conditions:

*	5 May 2014 – residual shrapnel scars – 0 percent
*	continued – PTSD –100 percent
*	continued – TBI with residual headaches –10 percent

20.  On 4 May 2020, the Army Review Boards Agency Psychologist rendered a medical 
advisory opinion in the processing of this case wherein she stated:

	a.  A review of the electronic VA medical record indicates the applicant has a 
service-connected disability rating of 100 percent for PTSD and 10 percent for 
headaches.

	b.  On 19 March 2007, the applicant self-referred to the Behavioral Health Clinic and 
was diagnosed with acute PTSD.  He was started on Prozac (fluoxetine, an 
antidepressant used to treat major depression, obsessive-compulsive disorder, and 
panic disorder) with a recommendation to participate in treatment with the Combat 
Stress Control Detachment.  Combat stress control programs typically consist of 3 days 
of individual and group treatment to reconstitute Soldiers during deployment.  Based on 
the recommendations of his provider, the applicant was reassigned to the tactical 
operations center instead of "going out on the wire" for missions.

	c.  On 4 April 2007, the applicant's provider noted he had been cleared to return to 
full duty as his sleep had improved and he had sufficient rest.  His provider noted he 
was upset because he had concerns about making it home to his daughter.  The 
applicant stated he "knows his TTPs [tactics, techniques, and procedures] and appears 
confident that he can fulfill his mission."


	d.  On 1 October 2007, the applicant redeployed from Iraq.  On 4 October 2007, he 
completed his reintegration screening, which included discussion of combat stress and 
anticipated adjustment issues to returning home from deployment.  On 10 October 
2007, he was evaluated for post-concussive symptoms due to reported blast exposure 
during deployment.  The group appointment focused on psychoeducation regarding TBI 
symptoms and the standard screening process used.

	e.  On 3 March 2008, the applicant self-referred to Social Work Services due to 
continued PTSD symptoms and partner-relational difficulties as he and his wife were 
living together for the first time.  He and his wife agreed to start marital counseling.

	f.  On 6 March 2008, the applicant was evaluated for medication to address his 
PTSD symptoms and insomnia.  He reported nightmares and irritability.  He reported 
continued conflict with his wife and that he hates his unit.  He was pursuing early 
discharge to attend college or would separate at his expiration of term of service in 
December.  The psychiatrist noted PTSD with strong depressive component and 
reported the applicant was functional at work, but would likely worsen if deployed.  He 
was prescribed Zoloft (sertraline, used to treat major depressive disorder, obsessive-
compulsive disorder, panic disorder, PTSD, premenstrual dysphoric disorder, and social 
anxiety disorder) for PTSD symptoms, and trazadone (used to treat depression) and 
prazosin (used to treat hypertension) for insomnia and nightmares.

	g.  On 11 March 2008, the applicant reported concerns that he may not get an early 
discharge to attend college and he will be held under stop-loss if he waits.  The provider 
noted "he continues to dwell on how much he hates his unit, his job, the Army and how 
it has ruined his life and marriage."  On 2 April 2008, the applicant informed his provider 
there was no improvement in his sleep and he just found out the unit was not approving 
early discharges to attend college.

	h.  On 15 April 2008, the applicant reported his wife and child went back to the 
United States and were not planning to return.  The applicant stated he continues to be 
frustrated by being in the Army and had thoughts of just leaving, but knows this would 
not accomplish his goals.

	i.  On 30 April 2008, the applicant reported discontinuing his medications because 
he didn't think they were helping.  On 12 May 2008, he agreed to try new medications, 
but was distressed about getting back to his wife in the United States.  On 9 July 2008, 
the applicant was discharged from the Army.

	j.  On 17 September 2014, the applicant completed a pre-employment physical and 
denied any conditions that would prohibit his civil service work as a fuel system 
mechanic.  He completed annual physical examinations for employment each year from 
2014 through 2020.  As of his evaluation on 4 February 2020, he was found medically 
qualified for his employment as a fuel system mechanic at Hill Air Force Base and was 
trying to be transferred to a new position as a C-130 cargo transport aircraft fuel system 
mechanic.

	k.  His provider noted the applicant's PTSD symptoms are currently stable with sleep 
disturbances due to sleep apnea (uses continuous positive airway pressure machine).

	l.  Per the 3 September 2014 Secretary of Defense liberal guidance memorandum 
and the 25 August 2017 clarifying guidance, there was no documentation to support a 
behavioral health diagnosis at the time of his discharge.  The applicant had significant 
symptoms and was treated while deployed.  After returning from deployment in October 
2007, he completed the required post deployment screenings but did not receive any 
behavioral health treatment from October 2007 to March 2008.  He self-discontinued his 
psychotropic medications within 4 weeks without reaching a therapeutic dose.  He 
started new medications in April 2008.  While he did discuss the possibility of an MEB 
with his provider in May 2008, he had only been on his new medications for 5 weeks.  
He was only in therapy for a 9-week period.  There was no report of inability to perform 
his duties at work but rather he had no desire to continue to serve in the military.  There 
were significant marital issues but as expected given he and his wife were living 
together for the first time and she wanted to return to the States.  While he has a service 
connected disability rating of 100 percent for PTSD, he has been employed as a 
Government civil service fuel system mechanic for the past 6 years.  In addition, per his 
most recent annual physical examination, his PTSD symptoms are under treatment and 
currently stable.  At the time of his discharge, his treating provider evaluated him and 
determined he met retention standards.

	m.  The applicant's referral to the DES is not warranted.

21.  On 19 June 2020, the applicant's counsel responded to the advisory opinion 
wherein she stated:

	a.  The conclusions reached in the advisory opinion are erroneous for the following 
three reasons:

		(1)  The advisory opinion applied the wrong standard for referral to the DES.

		(a)  The applicable regulations do not require a complete "inability" to perform 
one's military duties in order to trigger the requirement for referral of a Soldier to an 
MEB.  Further, it is the responsibility of a qualified physician to initiate an MEB review, 
without delay, upon a Soldier's manifestation of any of the symptoms identified in Army 
Regulation 40-501.

		(b)  The advisory opinion concludes that referral to the DES was not warranted 
because "there was no report of inability to perform duties at work."  This standard, 
which found no support in applicable regulations, is erroneous.  Army regulations 
require referral to an MEB as soon as a Soldier's anxiety disorder or neurological 
disorder interferes with effective military performance or necessitates limitations of duty, 
not when a Soldier is wholly unable to perform his duty.  The applicant's records show 
his PTSD and TBI were characterized by persistent and recurrent symptoms that 
resulted in limitations of his duties and interfered with his effective military performance.

		(c)  By requiring the applicant to demonstrate an "inability to perform" his duties, 
the opinion has created a heightened and erroneous standard in contravention of 
applicable regulations that were in place at the time of the applicant's discharge.

		(d)  The Army failed to refer the applicant to an MEB in March 2007 and after 
each of the subsequent 20-plus diagnoses of PTSD and TBI.

		(2)  The advisory opinion's conclusion is arbitrary because it ignores the objective 
record of evidence demonstrating that the applicant was suffering from service-
connected PTSD and TBI that rendered him unfit for further military service at the time 
of his discharge, thereby entitling him to medical retirement.

		(a)  The advisory opinion completely ignores the applicant's symptoms 
necessitating his discharge that led to him being diagnosed with PTSD and TBI on 
24 separate occasions.

		(b)  His medical records only show him being diagnosed with an adjustment 
disorder on one occasion.

		(c)  The advisory opinion concedes that the applicant was repeatedly diagnosed 
with and suffered from PTSD throughout his time in the Army.  However, the advisory 
opinion does not conclude, much less suggest, that the applicant suffered from any 
other non-compensable mental health disorder, such as an adjustment disorder or 
personality disorder.  The advisory opinion concludes that the applicant suffered from 
some unspecified "behavioral health condition," which is a term that is not defined in the 
advisory opinion, or in any applicable regulation or in the DSM, Fourth or Fifth Edition.  
In other words, the advisory opinion's conclusion is meaningless for the purpose of 
determining whether the condition necessitating the applicant's discharge was 
compensable.

		(3)  The advisory opinion fails to adhere to DOD-binding guidance.

		(a)  The advisory opinion is bound by DOD guidance, which requires the Board to 
give "liberal consideration" to veterans seeking "discharge relief when the application for 
relief is based in whole or in part on matters relating to mental health conditions, 
including PTSD [and] TBI."

		(b)  This "liberal consideration" must be given to all evidence, including civilian 
medical opinions, as well as evidence beyond treatment records, including "changes in 
behavior; requests for transfer to another military duty assignment; deterioration in work 
performance…episodes of depression, panic attacks [and]...relationship issues" and the 
award of VA disability benefits.

		(c)  DOD guidance further instructs the Board that "the veteran's testimony alone, 
oral or written, may establish the existence of a condition or experience, that the 
condition or experience existed during or was aggravated by military service, and that 
the condition or experience excuses or mitigated the discharge."

		(d)  Finally, when the record contains conflicting evidence as to the veteran's 
condition, DOD guidance requires the Board to liberally construe the evidence as 
supporting the diagnosis claimed by the veteran.

	b.  The Board should disregard the advisory opinion's recommendations and instead 
correct the applicant's records by granting him disability retirement for PTSD and TBI 
with a 100-percent disability rating, but not less than a 50-percent disability rating 
pursuant to Title 38, Code of Federal Regulations, section 4.129 (Mental Disorders Due 
to Traumatic Stress).

	c.  The applicant provided a detailed two-page, self-authored supplemental 
declaration wherein he responds to the advisory opinion by further describing his 
military service and personal experiences (see supplemental exhibit 1).  As the advisory 
opinion notes, he is a fuel system mechanic at Hill Air Force Base.  As a condition of 
employment, he is subjected to an annual screening to confirm that he is physically 
capable of performing his job.  His work at Hill Air Force Base is entirely unrelated to his 
role, duties, and responsibilities with the Army before and at the time of his discharge.  
At work he self-isolates and spends a significant amount of time alone in fuel tanks.  
Due to his PTSD, he struggles to interact with and get along with others at work and in 
general.  Being alone is the only way he can manage his PTSD symptoms at work.  
Working has been and remains a daily struggle.

22.  The Army rates only conditions determined to be physically unfitting at the time of 
discharge that 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.

23.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation 
for disabilities which were incurred in or aggravated by active military service.  An award 
of a VA rating does not establish an error or injustice on the part of the Army.

24.  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 the 
requested relief is not warranted.

2.  The Board concurred with the Army Review Boards Agency Psychologist's 
assessment that the applicant's referral to the DES is not warranted.  The Board noted 
the applicant's frequent contact with behavioral health providers during his active duty 
service, and noted that none of those providers recommended he be referred to a 
Medical Evaluation Board.  His in-service diagnoses of PTSD are noted, but the Board 
also noted the multiple situational stressors described in the advisory opinion (i.e., 
marital stress, denial of a request for early release to attend school, and general 
dissatisfaction with the Army.  The Board acknowledges counsel's contentions and the 
applicant's post-service medical history, but found neither to be compelling to a degree 
that would lead the Board to question the judgment of the provider who, at the time of 
his discharge, evaluated him and determined he met retention standards.  

3.  By a preponderance of the evidence, the Board determined the administrative 
discharge the applicant received was not in error or unjust.  


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20170017846


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