ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20180000053 APPLICANT REQUESTS: in effect, correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically separated or retired vice separated for a condition, not a disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Multiple identification cards (Social Security Administrative, Department of Veterans Affairs (VA) and driver’s license) * Medical records both inpatient and outpatient (49 pages) * DD Form 214 FACTS: 1. The applicant did not file within the 3 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 enlisted in the Regular Army on 7 June 2001 for a 3-year period of service. He trained in and was qualified as an infantryman. Prior to deploying to Iraq, the applicant went absent without leave (AWOL) on 4 December 2002 from his infantry unit at Fort Campbell, Kentucky. He was dropped from the rolls of the U.S. Army on 4 January 2003. Effective 18 October 2004 he returned to the control of the U.S. Army and his duty status changed to present for duty. 3. On 23 November 2004, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 4 December 2002 to on or about 18 October 2004, a violation of Article 86, UCMJ. His punishment included reduction to private/pay grade E-1, forfeiture of $586 pay per month for 2 months, restriction for 45 days which was suspended to be automatically remitted if not vacated before 22 May 2005 and extra duty for 45 days. He did not appeal his punishment. 4. He served in Iraq from 1 September 2005 to 13 January 2006. Among his awards and badges is the Combat Infantryman Badge. 5. On 23 January 2006, a DA Form 4856 (Developmental Counseling Form) documents the fact he was counselled concerning his inability to adhere to administrative orders of his superior commissioned officer, his company commander. He had received a written "No Contact” order by his commanding officer to have no contact with his wife unless supervised. On two separate occasions he made unsupervised contact with her. He was orally admonished and nonjudicial punishment was recommended. He was also advised to seek legal counsel. He concurred with the counseling. 6. On 23 February 2006 he violated Article 92, UCMJ by failure to obey an order and regulatory guidance. He was derelict in the performance of his duties as charge-of- quarters runner because he failed to go to his appointed place of duty. He had been contacted by his behavioral health care provider about an open appointment. He went to the appointment, but failed to notify his chain of command. His noncommissioned officer (NCO) leadership followed up with his behavioral health care provider and found the applicant had not been called nor was he seen that day. He was orally reprimanded for failure to go. He was further advised his continued conduct could lead to administrative separation under the provisions of Army Regulation 635-200 (Enlisted Separations – Active Duty Enlisted Administrative Separations). He agreed with the counseling as recorded on DA Form 4856. 7. Filed within his military record is a memorandum for record, dated 24 February 2006, from the applicant’s behavioral health care provider who clarified the applicant’s appointment schedule. It appears the applicant had two appointments at 13:00 hours on 22 February 2006. One appointment was in behavioral health and the other was with his primary care manager. He went to the appointment with his primary care manager and was rescheduled as a "Walk-In" for 23 February 2006. He was seen in behavioral health on 23 February 2006 and again on 24 February 2006. 8. On 3 March 2006, the applicant’s behavioral health care provider prepared DA Form 3822 (Report of Mental Status Evaluation) stating the applicant’s diagnosis was anxiety disorder not otherwise specified (traumatic stress). During the mental health examination the applicant’s behavior appeared normal, he was fully alert and fully oriented to his surroundings. He appeared anxious, with a clear thought process and normal thought content with a good memory. He had the mental capacity to understand and participate in administrative proceedings. 9. The behavioral health care provider additionally stated the applicant’s history of anxiety resulted from his tour of duty in Iraq. He had been returned to the continental United States because of his inability to work with his Iraqi counterparts. He stated the applicant’s condition did not require hospitalization, a rehabilitative transfer, training or reclassification to another type of duty within the U.S. Army. He stated rehabilitation efforts would potentially be unsuccessful. He stated with the applicant’s diagnosis of anxiety disorder, not otherwise specified he had a psychiatric condition within Army Regulation 40-501 (Standard of Medical Fitness), Army Regulation 635- 220 and the Diagnostic and Statistical Manual (DSM) Fourth Edition (DSM-IV). His anxiety interferes with his ability to perform duty and function in the military environment. He did not meet mobilization requirements without long term therapy. He recommended the applicant be separated under the provisions of paragraph 5-17 of Army Regulation 635-200. 10. On 6 March 2006, the applicant was counseled and informed by his unit chain of command that they were considering separating him under the provisions of paragraph 5-17 of Army Regulation 635-200. He received a mental status evaluation on 24 February 2006 stating he was unable to perform because of a personality disorder that was a condition, not a disability. The applicant agreed with his counseling statement and provided no rebuttal statement. 11. On 16 March 2006, a commanding officer issued the applicant a memorandum authorizing him to clear the unit and post without separation orders. He stated administrative separation proceedings had been initiated. 12. Concurrently the applicant’s unit commander initiated separation action against the applicant under the provisions of Army Regulation 635-200, Chapter 5, Section III, paragraph 5-17. His unit commander recommended he receive an honorable characterization of service. He was advised of his rights to consult with counsel or a civilian counsel at no expense to the government. He could waive his rights in writing, and he could withdraw his waiver at any time prior to the separation authority’s orders. He was authorized a separation medical examination in accordance with Army Regulation 40-501. 13. On 17 March 2006 the applicant indicated in writing he had been afforded the opportunity to consult with appointed counsel. He elected not to submit statements in his own behalf. He acknowledged receipt of the notification of initiation of separation proceedings correspondence. 14. On 22 March 2006, the applicant’s unit commander recommended his separation under the provisions of Army Regulation 635-200, paragraph 5-17. He outlines the applicant’s disciplinary history including his period of AWOL from 4 December 2002 to 18 October 2004, a period of 684 days. 15. On 4 April 2006, the separation authority approved the unit commander’s recommendation to separate the applicant. He directed issuance of an Honorable Discharge Certificate. 16. Accordingly, the installation prepared Orders 094-0607, dated 4 April 2006, directing the applicant be separated effective 10 April 2006. That order was amended with a new order directing his discharge date be effective 6 April 2006. The applicant was issued a DD Form 214 showing the following pertinent information: * he was discharged and not transferred to the U.S. Army Reserve * his characterization of service was honorable * the separation authority was Army Regulation 635-200, paragraph 5-17 * his narrative reason for separation was a condition, not a disability * he had served for 4 years and 10 months 17. The applicant provided medical records showing – a. On 31 December 2005 in Iraq, the applicant was a patient in the emergency room and was escorted to behavioral health due to suicide ideation and homicide ideation toward Iraqis who he held accountable for the deaths of his friends. The medical note states, "[The applicant was] involved in several [improvised explosive device] IEDs [with] multiple casualties.” He recounted the mortuary details to recover the remains of the fallen Soldiers. He reported he was hypervigilant, had blackouts and nightmares. Additionally, he reported he just found out his wife was pregnant by another man, her former husband. Ultimately, he was medically air evacuated to the continental United States on 7 January 2006. b. He was seen for knee pain – subluxation tendon iliotibial on 7 July 2005 at Fort Campbell, Kentucky. c. On 11 January 2006, a medical provider stated the applicant had no mental and no physical disability as recorded on Standard Form 600 (Chorological Record of Medical Care). He was oriented to time and space but showed signs of depression, sleep disturbance and loss of pleasure. d. On 2 February 2006, the applicant was seen in the deployment health clinic in an outpatient status. There was an extensive problem list which is separate from a diagnostic list. The problem list included anxiety disorder, not otherwise specified; post- traumatic stress disorder (PTSD); depersonalization disorder, and unspecified substance disorders and depression. He was prescribed medication for his anxiety and depressive symptoms. e. On 7 February 2006, he was seen again in the deployment health clinic wherein the medical provider, not a behavioral health care provider, said the applicant had anxiety disorder, not otherwise specified and depression. 18. The applicant’s evidence and application were forwarded to the Army Review Boards Agency (ARBA) senior psychologist wherein an advisory opinion was requested. The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing. There is no available evidence supporting a change to his narrative reason for separation. A review of his Department of Veterans Affairs (VA) records shows he is currently rated at 50 percent service-connected disabled. His VA problem list includes obesity, unspecified mood disorder, opioid dependence, PTSD, alcoholism in remission and brief reactive psychosis. The applicant did have PTSD at the time of his separation; however, he had not reached a medical retention decision point. He did not fail medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). The advisory concludes by stating the applicant did not meet the referral criteria for a medical evaluation board. A copy of the complete medical advisory was provided to the Board for their review and consideration. 19. On 13 April 2018, the staff of the Army Review Boards Agency sent a copy of the advisory opinion to him to give him an opportunity to respond. As of 4 June 2018, the applicant had not responded. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the medical advisory opinion. The Board discussed the applicant’ in-service medical records, his extended absence and the conclusion of the advising official that he did not fail medical retention standards for any of the conditions present at separation. The Board concurred with the advisory and determined that there was insufficient evidence to conclude error or injustice or to support a change to the applicant’s records. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 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. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 40-501, Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below acceptable physical standards. a. For anxiety, somatoform, dissociative disorders and mood disorders (depression) a Soldier can be referred to a medical evaluation board if the medical condition(s) require extended or recurrent hospitalization, limitation of duty or duty in a protected environment or interfere with effective military performance. Situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duties. b. Paragraph 3-31 (Disorders with psychotic features) shows the causes for referral to a medical evaluation board include diagnosed psychiatric conditions that fail to respond to treatment or restore the Soldier to full function with 1 year of onset of treatment. Mental disorders not secondary to intoxication, infections, toxic, or organic causes, with gross impairment in reality testing, resulting in interference with social adjustment or with duty performance. 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Chapter 3 states 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 member reasonably may be expected to perform because of his or his office, rank, grade 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. b. 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. c. Chapter 4 provides guidance on referring Soldiers for evaluation by a medical evaluation board (MEB) when a question arises as to the Soldier's ability to perform the duties of his or his office because of physical disability. The process begins when the Soldier is issued a permanent profile approved in accordance with Army Regulation 40- 501 and the profile contains a numerical designator of P3/P4 in any of the serial profile factors for a condition that appears to not meet medical retention standards. Within one year of diagnosis, the Soldier must be assigned a P3/P4 profile for referral to the DES (IDES). 5. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. [However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.] 7. Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-17 provides for the separation of Soldiers on the basis of other physical or mental conditions not amounting to disability under the provisions of Army Regulation 635-40 that potentially interfere with assignment to or performances of duty. Such conditions may include, but are not limited to, 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. When a commander determines 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 evaluation and/or a mental status examination in accordance with Army Regulation 40-501. A recommendation for separation must be supported by documentation confirming the existence of a physical or mental condition. A Soldier must be formally counselled before initiating separation action under the provisions of this paragraph. In addition, the standard notification procedure found in Army Regulation 635-200 must be followed. ABCMR Record of Proceedings (cont) AR20180000053 3 1