ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20180002411 APPLICANT REQUESTS: physical disability retirement in lieu of honorable discharge due to expiration term of service (ETS). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) letter, dated 26 June 2015 * VA medical documents in excess of 200 pages 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: a. The doctors found out some years after her Army discharge that she had post- traumatic stress disorder (PTSD) and fibromyalgia. She is a combat veteran who was sexually assaulted and sexually harassed while on active duty. She also suffers from anxiety, depressed mood, chronic sleep impairment, tendonitis in both hips since active duty and tendonitis in both knees since active duty. As a result, she has been unable to get or maintain gainful employment. b. About 1 month ago she came across some information regarding how to apply for a change to her discharge from honorable due to ETS to a medical retirement, so she put together a packet, but realized after submitting her application she was missing a letter explaining why she felt the discharge she received at her ETS was unjustified. In the following paragraphs she will do her best to explain why her discharge should be changed. c. She served on active duty for about 10 1/2 years. She is a combat veteran of Operation Iraqi Freedom (OIF), where she worked at the V Corps, G-3 (Operations) office. Prior to the war they were located in Heidelberg, Germany and when they first deployed it was to the desert in Kuwait, then about 2 or 3 months later they drove into Baghdad, Iraq. Her total time of deployment was a little over 1 year, from 2003 – 2004. d. She lived and worked at Camp Victory in Baghdad, Iraq, then after some months was moved to the green Zone in Baghdad until she departed Iraq. Even in the desert in Kuwait, they had to seek shelter in bunkers several times because of the mortar attacks and when they entered Iraq things got much worse. They were attacked so often it became part of their daily lives. She and some of her comrades drove unaware into an ambush one night. It was extremely terrifying, but by God’s amazing grace they made it out alive. One night living and working in the Green Zone, one single insurgent attack was so extreme that they lost roughly 40 or more vehicles and lost lives, including the lives of people she knew and worked with. There was no peace during this time in her life and it was lived trusting God to help guide and protect her and her fellow comrades. Even prior to her deployment, she was sexually harassed while stationed in Germany and survived the persecution because of her strong faith in Jesus. e. She was quite a dedicated and loyal Soldier who always gave above and beyond what was expected of her, but toward the end of her career she could hardly even get out of bed, although she kept on trying. Neither she nor the physicians assistants assigned to help her could understand what was happening to her. She recalled complaining to one of them that even her hair was falling out while stationed at Camp Casey, South Korea and she was told she was just stressed out, that’s why she was so weak and her hair was falling out. She was given 800 milligram Motrin to take and told she would feel better. f. She had frequent nightmares both during combat and even much worse after the sexual assault in South Korea. While stationed at Camp Casey from 2005 – 2007, she was sexually assaulted by a field grade officer, Major (MAJ) M____ J____, but never had the courage to report the incident while she was on active duty. When MAJ J____ realized she might report him, he begged her several times to not report him, but when he became unsure of his intentions with regard to reporting him and worried about the effect on his career, he resorted to defamation of her character, which just made her even angrier. She was devastated because that meant she became a victim twice to this man and all he cared about was saving his career. g. While she experienced sexual assault, sexual harassment, and abuse of power while stationed at Camp Casey, South Korea, at the same time she knew she was a person who lived a very ethical and God-fearing life. Things became really bad for her, but she never knew all that she was experiencing, anxiety, lack of appetite, lack of concentration, sleep deprivation, fear, and depression were symptoms of PTSD. Doing basic chores became a problem for her, but she could manage to function as a secretary for the Assistant Division Commander, who was a brigadier general. h. As someone with very strong Christian convictions, she strongly believed and lived her life without focusing on negative things, because such focus would show she is accepting defeat from the devil. Most people around her, Soldiers, officers, and civilians who she encountered over her years in the military would come to her and share very private things with her concerning their lives and those they loved or worked with. It was all because of the kind of person she was and her character, but for the past 5 years or so she has been unable to engage in conversations with people about their struggles and hardships because, due to her health issues, it triggers her PTSD. i. She is even unable to sit in group therapy sessions at the VA or elsewhere because she can’t listen to anything negative without it leading to unsound thoughts in her head, migraine headaches, chronic fatigue and other unbearable pains in her body. Her impression is that the VA didn’t even care about what she was going through and didn’t care to actually provide what she as a patient needed to get better. j. Her illnesses have robbed her of so much of her life. Never a day passes without her waking up in pain and sometimes it gets so bad that even getting up from bed in the morning to take a shower becomes a very difficult task. Sometimes it is so bad that she is unable to read anything, not even her Bible, or sit through a sermon because of the content of the message. She hears sounds almost every day of her life and when her PTSD is at its worst she feels like someone has poured hot water over her head and needles are being used to pinch her forehead at the top of her face. Sometimes she becomes so afraid of people that she’ll stay indoors for up to 5 days in a row without going outside. Because she feels like someone is following her, she has to keep looking back behind her to make sure no one is following her. Even just hearing negative words like depression, anxiety, etc. trigger her to hear voices in her head and this leads to intense migraine headaches. k. Sometimes she is even unable to finish her sentences because she does not remember what she was talking about or what she was going to do next, even when the interval is within seconds or minutes. She often has outbursts which has completely destroyed her relationship with family friends, past classmates, and most of those she met in the military. Her life has been so unbearable, but as a strong follower of Jesus, taking her own life is not an option so she is trying really hard to survive in this life because based on what she knows and believes, hell is much worse than what she is going through now on this earth. l. Her last few years in the military she lacked the proper guidance and leadership and not a single person educated her on filing for a medical discharge instead of an honorable discharge due to ETS. She couldn’t even get a single job because she thought she was normal, but many people, not just her family and friends, realized there was something so different about her. Since she didn’t have any money or a job after her ETS, she didn’t’ have health insurance for years and couldn’t get any. All she thought was in order for her to get health insurance she needed a job, not knowing all she needed to do was go to the VA hospital closest to her and register there for health care. She didn’t know this until she met a veteran who actually worked at the VA hospital and he told her of the free health care she could be getting there. m. Since enrolling in the VA health care system, they have been able to identify the names of the symptoms she has been struggling with for years. Never did she think after her ETS from the Army that she would become disabled. She hasn’t been able to work since April 2008. The health issues she struggles with have robbed her of so much, including family, friends, and not being able to work, socialize, and minister by volunteering to help those in need. The hardest thing she’s had to do is accept the fact she is struggling with PTSD, because never in 1 million years did she ever think someone who loves Jesus so much would ever struggle with PTSD and mental issues. 3. The applicant enlisted in the Regular Army on 7 November 1997. 4. She served in Korea from 18 September 2000 through 22 October 2001 and made a permanent change of station move to Germany, arriving in the European theater on 9 November 2001. 5. She served in Iraq from 25 February 2003 through 4 February 2004. Among her decorations, medals, and campaign ribbons awarded or authorized from this period are the Bronze Star Medal, Joint Service Commendation Medal, Meritorious Unit Commendation, National Defense Service Medal, Global War on Terrorism Expeditionary Medal, and the Global War on Terrorism Service Medal. 6. Her available service records do not show: * she was issued a permanent physical profile rating * she suffered from a medical condition, physical or mental, that affected her ability to perform the duties required by her MOS and/or grade or rendered her unfit for military service * she was diagnosed with a medical condition that warranted her entry into the Army Physical Disability Evaluation System (PDES) * she was diagnosed with a condition that failed retention standards and/or was unfitting 7. She was honorably discharged on 18 April 2008, due to completion of required active service after 10 years, 5 months, and 12 days of net active service. 8. She provided a VA letter, dated 26 June 2015, which shows she was granted a service connected disability rating of 70 percent for PTSD effective 12 August 2013 and had an overall combined rating of 80 percent as of that date, but was being paid at the 100 percent rate due to her individual unemployability. 9. On 19 March 2018, the Army Review Boards Agency (ARBA) clinical psychologist provided an advisory opinion. The ARBA clinical psychologist stated: a. The applicant’s military records are void of information including any records of mental status evaluations or reports of sexual or combat trauma. Her VA records indicate her diagnosis of PTSD was based on her report of military sexual trauma and her behavioral health treatment at the VA has consisted of individual therapy and medication management. VA records further indicate she reported being the only female assigned to her office while deployed to Iraq and that she experienced multiple combat situations, including mortar and rocket attacks on base and while driving in convoys. The applicant attributes her PTSD symptoms to an attempted rape by a superior officer while stationed in Korea. b. The ARBA clinical psychologist concluded there is insufficient evidence to determine if the applicant met the criteria for a boardable health condition during her time in service. Her military medical records are void of any behavioral health treatment or mental health evaluations or any indication that behavioral health symptoms impacted her functioning or occupational duties. There is no indication that a ratable condition existed at the time or that she did not meet medical retention standards at the time of her separation. This does not negate her post service diagnosis of PTSD or report of military sexual trauma; however, the Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. There is a lack of information to render a decision and the available evidence does not support a change to her discharge. A copy of the complete medical advisory was provided to the Board for their review and consideration. 10. The applicant was provided a copy of the advisory opinion on 26 March 2018 and given an opportunity to submit comments, but did not respond. 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. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 13. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 14. 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. 15. 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. The VA does not have the 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. These two government agencies operate under different policies. 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: After review of the application and all evidence, including the Army Review Board Agency Medical Advisory, the Board determined there is insufficient evidence to grant relief. The Board agreed with the Medical Advisory that the applicant’s PTSD and Fibromyalgia were not unfitting at the time of discharge and that the applicant’s characterization of service is proper and fitting based on the applicant’s record. There is no evidence that the applicant sought medical help for the claimed conditions during her period of service and the applicant was promoted, which indicates that there was no impairment to her duty performance, in fact, there is evidence that her performance improved as evident in performance evaluations in her official record. Therefore, the board agreed with the Medical Advisory and found no evidence in the record of a medical disability or condition that would support a CHANGE to the character, reason, rated conditions, disability determinations, disability ratings, and/or combat-relatedness for the discharge in this case. The Board further found that the VA properly provided her support and benefits for service connected medical concerns after discharge. 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. 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. 3. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 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. The VA does not have the 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. These two government agencies operate under different policies. 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. //Nothing Follows// ABCMR Record of Proceedings (cont) AR20180002411 9 1