IN THE CASE OF: BOARD DATE: 14 December 2022 DOCKET NUMBER: AR20170016290 APPLICANT REQUESTS: correction of his records to show he was separated due to physical disability, and personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Progress Notes, 18 March 2016 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he was diagnosed with post-traumatic stress disorder (PTSD). He contends he was misdiagnosed while in the service. He was previously diagnosed with adjustment disorder. 3. The applicant enlisted in the Regular Army on 11 March 2004. He served in Iraq from 1 January 2005 to 1 January 2006 and from 10 March 2007 to 12 May 2008. 4. Orders issued on 8 April 2008 directed the applicant's release from active duty, not by reason of physical disability, and his transfer to the U.S. Army Reserve (USAR) Control Group (individual Ready Reserve (IRR)). 5. The applicant Enlisted Record Brief, dated 15 July 2008, shows a physical profile serial system code of "111111." 6. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was released from active duty and transferred to the USAR Control Group (IRR) on 13 August 2008, by reason of completion of required active service. His DD Form 214 also shows he was assigned a reentry eligibility (RE) code of "1". 7. Orders issued on 17 April 2009, directed the applicant's reassignment from the USAR Control Group (Reinforcement) to the 300th Military Police (MP) Brigade. 8. Orders issued on 5 July 2011, directed the applicant's reassignment from the 300th MP Brigade to the 919th Transportation Company. 9. The applicant was discharged from the USAR on 11 January 2012. 10. There is no evidence in the applicant's available records indicating he was unable to perform his military duties due to a medical disability. 11. The applicant provided VA Progress Notes, dated 18 March 2016 that show he was diagnosed with PTSD. The evaluating physician stated the following: The veteran was previously diagnosed with adjustment disorder. It is my opinion based on the evaluation of the veteran that this diagnosis was made in error and that the proper diagnosis is PTSD, chronic. Furthermore, it is my opinion that the veteran met criteria for PTSD, chronic in January 2007. 12. Based on the applicant’s contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See ?MEDICAL REVIEW? section. MEDICAL REVIEW: 1. The military electronic medical record, AHLTA, was reviewed. Encounters span from 22 September 2004 to 10 July 2008. There is no evidence of dedicated behavioral health contacts. A PDHRA following his first deployment dated 9 May 2006 resulted in a diagnosis of adjustment disorder and described hypervigilance and frequent dreams of Iraq. A Reverse SRP evaluation dated 29 May 2008 indicated a positive response to PDHA; applicant described friends who were killed and missing family members. He was given information for follow on care if desired, but no diagnosis was made. An ETS physical dated 10 July 2008 did not indicate any mental health concerns, citing only a diagnosis of lumbago. Problem list/diagnosis history did not indicate any psychiatrically unfitting conditions 2. A review of VA records via JLV indicates veteran is 100% SC for PTSD. His VA mental health history is lengthy and significant and will not be fully summarized. The C&P evaluation below captures the essence of his combat history, prior treatment history up to the point of the evaluation, and appropriateness of his PTSD diagnosis. A cursory review of the record suggests he was first seen by a VA mental health care provider (primary care mental health) in August 2009 and notes marital concerns, employment concerns, and substance use concerns; his PCL score (self-reported PTSD symptoms) was 41 which would be considered elevated. He appears to have remained in rather consistent care over time, with a 22 November 2022 Tele/Psychiatry Issues note indicated “chronic and severe PTSD” and “can be volatile, reactive, has aggressive and assaultive urges.” Note also references (date unclear) that he found his teenage stepdaughter following suicide by hanging as well as “TBI 5-6 in service with chronic headaches, inattention, irritability, poor memory…..unspecified ADHD.” Applicant submitted a medical opinion/DBQ dated 18 March 2016 in which the evaluating physician opined that he believed that the veteran met criteria for PTSD, chronic, dating back to January 2007 and that a prior VA diagnosis of Adjustment Disorder was in error. A C&P Examination of 21 January 2016 resulted in diagnosis of PTSD, Chronic and noted applicant was an M-1 Abrams crewman with multiple tours to Iraq as noted in the ROP, the second during the Surge following a reported stop-loss. Multiple soldiers known to applicant were killed during this second deployment. Specific stressors included extended combat exposure, “and almost killed on numerous occasions...he had friends killed in action...a mortar landed right next to him…he had been hit by an IED explosion.” In addition, applicant’s best friend (among others) was killed and applicant was on scene shortly thereafter, saw the corpse, and had to help clear the scene and collect remains. Per this C&P applicant first received mental health treatment in 2013; treatment as of the time of the examination had included court- ordered anger management, psychotherapy, and medication management. At that time, he denied residential or inpatient psychiatric treatment. Examination indicated applicant was currently on probation apparently associated with a firearm charge in which he became angry with others and went outside and fired his gun a few times. When police intervened, he reportedly considered suicide by cop but surrendered. Two other occasions were described in which applicant had guns drawn on him by law enforcement. He described he was caught drinking alcohol in Iraq and made to “stay in Iraq another month.” He drank heavily after his discharge from active duty and described use of multiple other substances, “anything that would numb him out.” His DD214 references service in Iraq as noted above and award of the Combat Action Badge per a DD215. 3. Summary/Recommendations: The applicant has applied to the ABCMR requesting correction of his records to show he was separated due to physical disability. He has a well-established diagnosis of PTSD per his 100% VA service connection and numerous treatment notes over time through the present. There is no evidence that he was formally determined to not medical retention standards, was referred for disability processing and found not fit for duty, or initially discharged under a medical/psychiatric disability. Given that he did not engage in care for a psychiatric condition or otherwise have indications of such a condition which might ultimately lead to a medical processing/separation, this would not be considered an error. Furthermore, an adjustment disorder diagnosis, especially in the near-term following trauma exposure, would not necessarily be considered a misdiagnosis. VA standards for service- connected disability and Army fitness for duty standards differ, so a 100% service connection for PTSD would not necessarily reflect a medical disability per Army fitness standards. However, under liberal consideration and in an abundance of caution given his history and functioning, the Board may wish to consider referral to DES to further evaluate appropriateness for a medical separation/disability retrospectively. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board found partial relief is warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advising official finding no evidence that he was formally determined to not medical retention standards, was referred for disability processing and found not fit for duty, or initially discharged under a medical/psychiatric disability. Given that he did not engage in care for a psychiatric condition or otherwise have indications of such a condition which might ultimately lead to a medical processing/separation, this would not be considered an error. Based on the medical review, the Board determined in abundance of caution given his history and functioning, the Board may wish to consider referral to DES to further evaluate appropriateness for a medical separation/disability retrospectively. Based upon the preponderance of the evidence, the Board agreed the applicant’s record should be referred to the Office of the Surgeon General for medical evaluation consideration, with all relief dependent upon a final medical determination. 2. Referral to the IDES occurs when a Soldier has one or more conditions which appear to fail medical retention standards as documented on a duty liming permanent physical profile. The DES compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION OARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 directing his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES). a. In the event that a formal physical evaluation board (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. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and 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 that 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 changing his type of discharge without evaluation under the IDES. 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, U.S. Code, 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 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 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria for enlistment and processing into the Regular Army and the USAR. This regulation provides that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. Chapter 3 of this regulation prescribes basic eligibility for prior-service applicants for enlistment. This chapter includes a list of Armed Forces RE codes. RE-1 applies to persons completing their term of service who are considered qualified to reenter the Army, provided all other qualifications are met. 3. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, the individual must be unable to perform the duties of his or her office, grade, rank, or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 4. Army Regulation 40-501, chapter 7 (Physical Profiling) of the regulation in effect at the time of the applicant's separation, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. 5. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement or Separation) 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. 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. 6. 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. However, an award of a 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 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 awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. 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. 7. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170016290 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1