ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 5 January 2021 DOCKET NUMBER: AR20180012984 APPLICANT REQUESTS: through the National Veterans Legal Services Program a medical discharge or in the alternative, placement in the temporary retired list and scheduled for a reexamination. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 14 Page Memorandum in Support of Application with 100+ attachments 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 (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. In a Memorandum in Support of Application, counsel states, in relevant part: a. The applicant served as an active duty soldier from 7 April 2005 until his honorable discharge after completion of his required term of active service on 17 August 2008. The Army should have medically discharged the applicant before he reached the end of his term of active service because he suffered from disabilities that rendered him unfit to perform his military duties. The applicant's medical and military records clearly indicate, while in service, he suffered from post- traumatic stress disorder (PTSD), an anxiety disorder, traumatic brain injury (TBI), and other injuries that significantly interfered with his ability to perform his military responsibilities. Instead of being permitted to reach the end of his term of active service, the applicant should have been referred to a medical evaluation board (MEB) that would have found him unfit for further military service according to governing regulations. b. At the time of his enlistment, the applicant was psychologically and physically fit for military duty. He served as an infantryman providing support to offensive and defensive combat operations. As part of his duties as an infantryman, he successfully completed airborne training which allowed him to perform parachute jumps in combat. The applicant served in Iraq from 1 August 2006 until 26 October 2007. While in Iraq, he had at least eight first-hand encounters with improvised explosive devices (IEDs). Most of the of the encounters involved explosions at close range, several of which caused the applicant to lose consciousness for a brief period of time. Following many of the incidents, the applicant was shaken-up and dizzy, but often immediately returned to duty. The IEDs proved to be lethal to fellow soldiers. Only two of the Soldiers in the applicant's platoon returned from Iraq alive. The applicant witnessed the deaths and serious injuries of several of his fellow soldiers and engaged in direct fire with the enemy. The applicant was awarded the combat infantryman badge (CIB) for satisfactorily performing duties in active ground combat to destroy the enemy with direct fire. c. The applicant suffered and stills suffers psychologically and physically from his violent tour in Iraq. In particular, following his second encounter with an IED, the applicant lost consciousness for over a minute and experienced headaches and light sensitivity after the encounter that persists today. Additionally, the applicant began experiencing recurring distressing memories, inability to sleep, vivid nightmares, depression, rage, panic attacks, dissociative anger and alcohol abuse after he returned from Iraq. The applicant was diagnosed with PTSD in May 2008 and again in June 2008. The diagnosis included anxiety, depression, adjustment disorder, alcohol abuse and psychological stress. d. At the time of his diagnosis in 2008, the applicant's PTSD symptoms were severe. He experienced associative disorder, strong suicidal and homicidal plans, auditory hallucinations, including conversations with men who died in Iraq, and visual hallucinations, where he saw moving shapes. The applicant did not have a problem with alcohol prior to his deployment in Iraq, but upon returning home, he drank a gallon of alcohol a day to cope with PTSD related symptoms. The applicant also expressed feeling homicidal towards Iraqis. He became obsessed with collecting and buying knives and amassed a large knife collection. e. Field related duties frequently triggered flashbacks and created distress for the applicant. In May 2008, Dr. C. recommended the applicant only participate in low intensity (non•combat) duties for an indefinite number of hours and not participate in any airborne or live fire operations for the next thirty days due to his PTSD symptoms. In June 2008, Dr. F. found the applicant suffered from a severe form of PTSD and urged his superiors to re-assign him away from field-related duties to a job setting less likely to exacerbate his PTSD symptoms and based on Dr. F's recommendations. Dr. C's examination reported the applicant was "potentially dangerous" and he "may possible injury [sic] others if engaged in activities that recreate deployment experiences and exacerbate his." f. By 19 June 2008, the applicant's case management officer at Womack Army Hospital noted Dr. F. was to "give information to Division provider to start the P3 and MEB process." Despite the passage of time and continued mental health treatment, the applicant's psychological and physical problems persisted and he continued to experience depression, nightmares, flashbacks, hearing voices, difficulty sleeping or staying asleep, outbursts of anger, struggles with irritability, difficulty concentrating, hypervigilance, road rage, and suicidal and homicidal ideations. In addition to PTSD, the applicant suffered from traumatic brain injury (TBI). When he first returned from Iraq, his PTSD symptoms were so severe, it was difficult for mental health professionals to evaluate and diagnose TBI. Examiners found it hard to separate the PTSD symptoms from the cognitive problems. As the applicant concentrated on controlling his PTSD symptoms, he was diagnosed with Axis III TBI, suffered in combat related to his cognitive problems. As a result of the TBI, he experienced sensitivity to light which prevented him from being in the sun for more than fifteen minutes. He suffered from short-term memory loss and headaches and found it difficult to do his job when returning home from Iraq. g. The applicant suffered from various other physical injuries he received while in Iraq which inhibited is ability to perform his military duties. He suffered from headaches, back pain, feeling tired after sleeping, diarrhea and ringing in his ears, both during and after deployment. He also had concerns he may have serious conflict with his spouse, family members, or close friends upon returning from deployment. He still suffers from shoulder pain, a knee injury, hand and eye pain and hearing loss. He has chronic knee pain attributed to a knee injury suffered from jumping out of an aircraft in Iraq. The knee injury made it difficult for Duran to jump out of airplanes and perform other exercises required of Soldiers. The applicant developed arthritis in his hands making it difficult to hold anything for long periods of time. He also experienced eye trauma and hearing loss from his encounter with IEDS, impairing his ability to use night vision goggles and hear commands and orders. In a rating decision dated 28 May 2009, the Department of Veteran Affairs awarded service connection for a right knee disability (10%), right and left wrist condition (each rated at 10%), and tinnitus (10%). h. The applicant was honorably discharged on 17 August 2008. Following his discharge from the Army, the applicant returned to his family's home in Colorado. He frequently visited mental health professionals complaining of PTSD and TBI related symptoms. Since being discharged, the applicant's PTSD has been a constant impediment to his ability to live a normal life. Frequent anxiety attacks, headaches and the inability to control his anger preclude him from maintaining meaningful employment. The applicant was hospitalized in 20 November 2008, for PTSD related symptoms. He was treated until his condition stabilized in 22 December 2008, when he was transferred for an intensive in-patient PTSD program. He remained in the program until 20 January 2009. VA increased the applicant’s disability rating to 100 percent. The award was made retroactive to the day after his discharge from active duty. i. Counsel argues the Army should have medically discharged the applicant on the basis he was unfit for further military duty due to his PTSD and TBI. The Secretary of the Army has promulgated regulations governing the procedures by which an Army service member may be discharged. When a service member is suffering from a mental disorder, such as PTSD, that calls into question the member's continued fitness for military duty, the Army is to refer the member to a MEB and PEB. These boards then determine whether the soldier's mental disorder causes the soldier to fall below the Army's retention standards. The Army failed to comply with its own regulations and Department of Defense Instruction in discharging the applicant without referral into the disability evaluation system (DES). The Army failed to refer the applicant to a MEB or PEB after he had received multiple in-service diagnoses of PTSD. His providers intended for the applicant to be evaluated by a MEB; however, he was honorably discharged at the end of his term of service. j. Before the applicant was discharged at the end of his required term of active service the Army should have referred him to a MEB. Governing regulations requires referral to a MEB where a "soldier's medical fitness for return to duty is questionable, problematic, or controversial." An anxiety disorder is listed as a medical condition which should initiate a MEB. Another cause for referral to a MEB is symptoms which necessitate limitations of duty or duty in a protected environment. The applicant had been diagnosed with PTSD which adversely affected his ability to perform military duties and should have been referred to an MEB and rendered unfit for military service. If the Army had complied with the applicable regulations, a MEB would have evaluated the applicant to determine whether his PTSD caused him to fall below the Army's standard of medical fitness. The applicant's military record demonstrates he fell below the Army's retention standards because his persistent PTSD symptoms continually interfered with the effective performance of his military duties. After returning from deployment in Iraq, he was diagnosed with PTSD by mental health professionals both inside and outside of the military. His PTSD unequivocally and adversely interfered with his military service. k. Assuming a MEB would have concluded the applicant fell below the Army's retention standards, the Army would have been required to forward his case to a PEB. Referral to a PEB is mandatory if an MEB determines a service member has fallen below medical retention standards. However, because the Army did not refer the applicant to a MEB, he was never referred to a PEB. Because the Army never referred the applicant to a MEB or PEB, he has been deprived of the opportunity to collect military disability retirement benefits and TRICARE health insurance. If the Army had followed its discharge procedures and referred the applicant's case to a MEB and, thereafter, to a PEB, the applicant's military medical records would have compelled a PEB to conclude the applicant's PTSD rendered him unfit for military service. As a result, he would have been entitled to the benefits described above. l. Pursuant to governing regulation, upon the determination by the Secretary of the Army that a service member entitled to basic pay is unfit to perform the service member's duties because of physical disability incurred while entitled to basic pay, the Secretary may retire the member, with retired pay. If the evidence shows a Soldier is at least thirty percent disabled due to a disability that was proximately caused by active duty, the solider shall be awarded retirement compensation. Because the Army did not refer the applicant to a MEB, a PEB was never given the opportunity to make the determination. The severity of the applicant's PTSD is evidenced by the fact he was hospitalized due to his PTSD related symptoms less than four months after his discharge. m. In a VA examination undertaken a month after his discharge from the military, the applicant was noted to have "severe mental health symptoms of PTSD and comorbid depression." The applicant had a preoccupation with suicidal and homicidal ideation" and symptoms that were "severe enough to prevent all types of employment" and made him "not competent to manage his own funds." The PEB would have been required to conclude the applicant, at the time of his discharge, was at least thirty percent disabled due to his PTSD-related systems. Further, pursuant to governing regulations provide, "when a mental disorder develops in service as a result of a highly stressful event and is severe enough to bring about the veteran's release from active military service, the rating agency shall assign an evaluation of not less than 50 percent." The exams conducted prior to the end of the applicant's term of active service demonstrate such a rating would be appropriate. In light of the foregoing, the applicant should have been medically discharged from the Army with the benefits set forth in governing regulations. At the very least, the Board should determine the applicant warranted DES processing and refer his case to a PEB for immediate consideration of a disability retirement. Counsel's complete memorandum is available for the Board's review and consideration. 3. Counsel provides a letter from the applicant which reiterates counsel's contentions and states, in part: a. He joined Army in 2005 at the age of twenty. He was deployed to Iraq in 2006, where he served as an airborne infantryman for a period of fifteen months. While in Iraq, he frequently encountered dangerous combat situations. On 27 November 2006, he was traveling in a train of Humvees when the Humvee in front of him drove over a landmine and blew up. He tried to assist an injured officer out of the vehicle, but could not get him out alive. This was just one of the many times he witnessed or experienced the death of other American Soldiers in Iraq. b. Serving in armed combat in Iraq inflicted both physical and psychological injuries upon him. These injuries negatively impacted his ability to perform on the job while in Iraq and upon his return to the United States. While at Fort Bragg, he was hospitalized and diagnosed with PTSD. He believes his PTSD affected him while serving in the Army and made it more difficult for him to do his job. Shortly after returning from Iraq, he began drinking heavily and using alcohol to cope with the stressors of PTSD and TBI. c. He sustained a host of other injuries while serving on active duty which impacted his ability to perform on the job. He is now 27 years old. His day to day life continues to be impacted by the physical and psychological injuries he received while serving my country. Prior to his enlistment, he did not suffer from any of the ailments or injuries he has describe in this declaration of injuries. Because the injuries he sustained while serving in the Army severely affected his ability to perform on the job, he is seeking to correct his military records and amend the reason for his discharge from the Army. The applicant's complete statement is available for the Board's review and consideration. 4. The applicant enlisted in the Regular Army on 7 April 2005. He served in Iraq from 1 August 2006 through 26 October 2007. 5. The applicant’s available medical records are void of evidence showing: * he was issued a permanent physical profile rating * he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the physical DES * he was diagnosed with a condition that failed retention standards and/or was unfitting 6. A Report of Behavioral Health Evaluation, dated 20 May 2008, found the applicant met retention requirements. He was diagnosed with PTSD. His potential for self-harm and harm to others was moderate. 7. A letter from Dr. F, Licensed Psychologist, date 5 June 2008, urged the applicant's superiors to seriously consider re-assigning him away from field-related duties to a job setting which would be less likely to exacerbate his PTSD-related symptoms. 8. A Memorandum for Record, issued by Dr. C, Clinical Psychologist, dated 6 June 2008, recommended the applicant be temporarily assigned to non-field duties. The recommendation was based on the recommendation of the outside psychiatrist and the previous recommendation of Dr. P. 9. On 10 June 2008, the applicant's case manager stated the applicant left a voicemail indicating his provider wanted him to go to a MEB. The applicant indicated he was instructed to get an appointment with Dr. C at Mental Health to discuss a MEB with him. There is no evidence a MEB was conducted. 10. On 19 June 2008, the applicant's case manager indicated Captain (CPT) H would review with the applicant the process for a MEB. The applicant indicated he would be trying to get his information from Dr. F to give to Division Provider to start the P3 and MEB process. There is no evidence of a P3 profile or referral to a MEB. 11. On 17 August 2008, the applicant was honorably released from active duty due to completion of required active service and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement). He was awarded or authorized the: * Army Commendation Medal * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal * Army Service Ribbon * Overseas Service Ribbon * Combat Infantryman Badge * Parachutist Badge 12. The Interactive Personnel Electronic Records Management System (iPERMS) includes the applicant's activation orders, revocation of activation orders, and orders discharging the applicant from the Army Reserves. There is no evidence showing the applicant's leadership had concerns while he was a member of the Reserves and no indication of impairment. 13. On 8 July 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The ARBA medical advisor states, in part: a. Although the applicant held an off-post diagnosis of PTSD and initial on-post diagnosis of PTSD, the record is void of markers suggesting a mental health condition was persistent, pervasive, or permanently interfered with his ability to perform in his military occupational specialty (MOS); he did not meet Medical Retention Determination Point (MRDP). Rather, after further assessment his PTSD diagnosis changed to Anxiety Disorder and then Adjustment Disorder at separation. b. The applicant was psychiatrically fit at the time of separation. The record is void of a diagnosis that, in and of itself, requires a medical board referral. The record is void of markers suggesting a mental health condition met MRDP. Rather, the applicant continued serving without a permanent or reoccurring profile, psychiatric hospitalization, Command Directed Mental Health Evaluation (CDMHE), or disciplinary issues. While the applicant’s civilian provider inquired about a medical board, he was assessed and found to meet retention standards. Furthermore, the applicant reported symptoms worsened after discharge although still served in the Army Reserve and held employment. c. The applicant held a civilian diagnosis that can be medically boardable if it falls below retention standards. However, the diagnosis alone does not equate to a referral and records do not support the applicant met MRDP while in-service. This determination does not negate the applicant’s service in Iraq or post-service diagnoses and treatment from VA; however, the Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. That role and authority is granted by Congress to the Department of Veterans Affairs who conduct evaluations based on different standards and regulations which do not address whether a medical condition met or failed Army retention criteria or if it was a ratable condition during the period of service. A copy of the complete medical advisory was provided to the Board for their review and consideration. 14. In response to the medical advisory, counsel provides a rebuttal and states, in part: a. The Opinion applies inapplicable standards to the applicant's case, resulting in unwarranted assessments. According to the Opinion, "even with a PTSD diagnosis, a medical board referral occurs when symptoms are impairing to the point they are disqualifying in severity. These statements, however, are inconsistent with the standards that govern this case as articulated in the 2007 Revision of Army Regulation 40-501. The regulation does not require permanent interference or severe disqualification, nor does the 2007, Army Regulation 40-501 refer to the concept of an MRDP threshold, which was introduced into the Army's DES process much later than August 2008. The Opinion commits an inexcusable and critical error of relying on the wrong standards of permanency and severity, and on the concept of MRDP that is irrelevant to the procedures by which the Army should have addressed the applicant's conditions back in 2008. As the Petition explains in detail, the applicant's symptoms satisfied, per Army Regulation 40-501, the conditions of persistence or recurrence of symptoms that necessitate limitations of duty and/or resulted in interference with effective military performance. b. The Opinion is mistaken about the process of initiating an MEB review, as it ignores the explicit regulatory provisions in Army Regulation 40-501 on the applicable procedures. The opinion implies the applicant should have referred himself to a MEB on his own initiative, noting he did not submit documents to initiate a MEB process but "just let his time run out" until scheduled discharge. However, it is the responsibility of physicians, not the applicant's, to initiate an MEB review, and to do so without delay. Furthermore, according to the governing regulation, "physicians who identify Soldiers with medical conditions listed in this chapter should initiate an MEB at the time of identification" and "should not defer initiating the MEB until the Soldier is being processed for nondisability retirement." As such, Dr. C., who made the "initial on-post diagnosis of PTSD or other on-post medical staff members who treated the applicant should have immediately initiated a MEB process in May 2008. The applicant's impending separation from the Army does not justify the responsible physicians' decision to defer, or omission to initiate, the applicant's MEB review. The Army should have proactively referred the applicant to a MEB prior to his separation or at minimum extended his date of discharge, if such extension was necessary to accommodate a proper MEB process. c. The Opinion makes an alarmingly overreaching conclusion despite an off-post diagnosis of PTSD and initial on-post diagnosis of PTSD, the record is void of markers suggesting a mental health condition was persistent, pervasive, or permanently interfered with the applicant's ability to perform in his MOS. In finding this evidentiary "void," the opinion pays selective attention to certain types of "markers," while failing to reconcile several critical facts and implications thereof that are contrary to the opinion's conclusion. d. The Opinion fails to meaningfully consider the off-post diagnosis of PTSD or the 5 June 2008, diagnosis by Dr. F., a civilian psychiatrist. Dr. F unambiguously diagnosed the applicant with "a severe form of PTSD. The opinion, however, appears to find Dr. F's civilian diagnosis of PTSD has no bearing on the opinion's review and is completely superseded by another on-post diagnosis of Adjustment Disorder. As further discussed later, such a dismissal of civilian diagnosis is incompatible with the governing evidentiary standards and norms within the psychiatric field. The opinion is oblivious to the fact Dr. C's 6 June 2008, memorandum had incorporated the "recommendation of the outside psychiatrist," which referred to Dr. F. e. The opinion also dismisses post-discharge evidence the applicant's heightened PTSD symptoms limited his Reserve duties and interfered with his performance in the Army Reserve. The opinion observes the applicant was "active in his reserve duties without limitations or indication of impairment," as of May 2009. The opinion, however, fails to give full weight to the fact the Reserve issued activation orders in November 2009, and immediately revoked them within one month. If the applicant had experienced no limitations or impairment in the Reserves, as the opinion suggests, his activation orders would have not been rescinded and he would have remained in the Reserve. Instead, the applicant was discharged from the Reserve in February 2010, only a few months after the activation orders were rescinded. f. The Opinion also rejects VA disability ratings and post-discharge medical evidence considered by VA. It is undisputed the applicant was hospitalized in a VA medical center for PTSD from 20 November 2008 to 20 January 2019; and he was assigned a 100% VA disability rating for his PTSD retroactive to 18 August 2008. The opinion nevertheless dismisses the relevance of the applicant's VA records, because VA evaluations are based on "different standards and regulations which do not address whether a medical condition met or failed Army retention criteria or if it was a ratable condition during the period of service. The opinion's position is mistaken, VA evaluations, while not binding, may constitute persuasive evidence for the ABCMR to consider in discharge relief petitions. The opinion's failure to give due weight to the abovementioned evidence, in turn, is incompatible with the evidentiary standards articulated by the federal courts and the Hagel/Carson/Kurta Memorandum. g. Counsel in this case has consulted with the George Mason University Center for Psychological Services with respect to this case. Based on an assessment of the applicant's service treatment records and other medical records, Dr. R. M. has determined the applicant's PTSD symptomatology was at a severely high level at the time of his discharge from the military. Dr. M found the treatment being offered while he was in the military was not effective at specifically targeting his PTSD symptoms. If anything caused his symptoms to worsen, it was the lack of effective treatment for PTSD and not that the applicant experienced additional stressors or more severe symptoms once he was discharged from the Army. h. When there is conflicting evidence as to the veteran's condition, as in this case, the Board should liberally construe it as supporting the diagnosis of the veteran's claim. Evidence that "may reasonably support more than one diagnosis should be liberally considered as supporting a diagnosis" that would support the veteran's claim. Id. According to the opinion's recital of facts, there is conflicting and complex evidence in this case that may reasonably support more than one diagnosis, such as PTSD and Adjustment Disorder. The opinion, however, chooses a diagnosis of Adjustment Disorder, by failing to "liberally" construe the presented evidence in support of a diagnosis of PTSD. It is our position the available evidence as a whole is quite clear and compelling the applicant has continuously suffered PTSD symptoms since the traumatic events in Iraq: a one-time short-term diagnosis of Adjustment Disorder at the time of separation, even if valid, is entirely consistent with the overall, long-term PTSD symptomatology, which may include mixed intervals of alleviation and exacerbation of symptoms. To the extent there may be any degree of ambiguity in the evidence, we believe that the evidence should be liberally construed to favor a diagnosis of PTSD over its alternatives, pursuant to the Kurta Memorandum. i. Dr. M determined the applicant's symptoms warranted a diagnosis of PTSD when he was discharged from the military. The 5 June 2008, letter from Dr. F stated the applicant suffers from a severe form of PTSD. Both Dr. F and Dr. C wrote letters to Mr. Duran's chain of command advising he should be relieved of field- related duties. These points highlight the specific symptoms of PTSD experienced by the applicant clearly establish a diagnosis of PTSD, as well as establish these symptoms interfered with his ability to perform his military duties. The opinion's concluding remark the applicant's record is "void of a diagnosis that, in and of itself, requires a medical board referral" epitomizes the opinion's blind quest for an exclusive, in-and-of-itself type of evidence, and its corresponding failure to give due weight and liberal consideration to all the evidence available. The combined principle of the Jordan decision and the Kurta Memorandum is the Board's decision needs to reflect a balanced and liberal consideration of all the evidence that encompasses a full spectrum of evidence, including the applicant's in-service civilian diagnosis, post- service medical history, and VA findings. j. The opinion relies on wrong standards and procedures to evaluate whether the applicant's PTSD symptoms merited a MEB referral back in 2008; who should have been responsible for initiating the referral; and when the referral should have taken place. The opinion also fails to reflect a balanced and liberal consideration of all the evidence available and presented, which if taken together would support the finding the applicant deserved a MEB referral before separation. 15. On 28 January 2020, counsel provided a private medical opinion pertaining to the applicant from an advanced Clinical Doctoral Student and a Clinical Psychologist from George Mason University, Center for Psychological Services which states, in part: a. They do not entirely agree with the findings contained in the July 2019 advisory opinion obtained by the ABCMR. While specific mental health diagnoses in his Army medical records varied in the months leading up to his discharge, it is clear the applicant reported persistent and pervasive PTSD symptoms beginning after his deployment to Iraq. Further, the letters written by Dr. F and Dr. C requesting limited work duties lend support to the notion the applicant was experiencing mental health symptoms that significantly interfered with his ability to perform in his MOS in the final months of his active-duty service. b. The applicant was diagnosed with Adjustment Disorder and/or Anxiety Disorder NOS, rather than PTSD, by Army providers in the final months of his active- duty military service. As a result, he did not receive evidence-based treatment targeting PTSD symptoms prior to his discharge. Given the lack of PTSD-focused treatment to address the applicant's post-trauma symptoms, it is unlikely his PTSD symptoms would spontaneously remit during the summer of 2008. They believe it is possible this lack of treatment contributed to the applicant's deterioration in the weeks following his separation, leading to increasingly debilitating PTSD symptoms, and necessitating hospitalization that November. Finally, though his brother's recent brain injury may have caused enough distress to warrant an Adjustment Disorder diagnosis in the summer of 2008, the applicant very likely continued to experience symptoms of PTSD, and which were left untreated to focus on an emergent issue of concern in his mental health treatment, i.e. his brother's brain injury. c. Notably, their conclusion is further corroborated by VA's decision to retroactively service connect the applicant with PTSD to the day after of his discharge, per medical records. A diagnosis of PTSD is warranted when an individual has experienced symptoms for at least one month. The VA's decision to retroactively service connect the applicant with PTSD to August 18, 2008 indicates the applicant had been experiencing PTSD symptoms throughout July of 2008, which was, in fact, during his active-duty military service. d. The applicant appeared to experience significant PTSD symptoms while active duty, which also appeared to worsen in the years following his military service. His symptoms certainly warranted a 100-percent disability rating based on review of VA Medical records following his military service, as they included impairments such as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, and intermittent ability to perform activities of daily living. However, evidence of these types of impairments were not specifically mentioned in Army Medical records, based upon our review. The complete private opinion is available for the board's review and consideration. 16. On 25 February 2020, in response to the advisory opinion submitted by counsel, the ARBA clinical psychologist/medical advisor provided an advisory opinion. The ARBA advisor states, in part: a. Although the opinion is noted, the report does not contain any new documentation from the applicant's time in service; the confines of a fitness for duty determination. Moreover, supplied VA records are limited to December 2008 to January 2009; it is unclear why the applicant did not submit records from 2009 through 2015 as well as the post-advisory treatment from August to October 2019. Lastly, it appears the evaluator/s were unfamiliar with how a fitness for duty determination is rendered; the assessment is limited to in-service presentation and functioning rather than post-service inferences. In summary, while the report is acknowledged, the review did not contain new in-service documentation for consideration. b. In reviewing the updated VA medical records, after the applicant received the Advisory Opinion, he went to the VA and reported “gradually worsening PTSD triggers, flashbacks, and use of cannabis and alcohol to assist with sleep;” however had been working full time and reaffirmed he was “doing well” at his last VA appointment in 2015. He subsequently enrolled in a residential treatment program for PTSD. During the treatment, the applicant noted “while deployed (Iraq – 2006- 2007) … He described initiating and enjoying violence during that timeframe and shortly thereafter … ‘I used to miss the violence when I first got out. I liked the rush – the adrenaline – but you can’t really do that anymore. So I’ll go hit a [punching] bag instead. It’s not the same, but it gets the job done’.” The applicant reported receiving disciplinary action while deployed after he “Fragged the wrong house and killed too many innocent civilians.” The provider noted successful functioning over the prior 18 years to include full-time employment, minimal job changes, engaging in enjoyed activities, and coaching kids’ sports. The applicant completed the program, but did not follow up resulting in termination. c. At the time of separation, documentation supports the greater weight of evidence; the applicant met medical retention standards and did not require a MEB referral; however, if the Board wanted to proceed with an abundance of caution, a referral to the Disability Evaluation System (DES) is an option. The complete advisory is available for the board's review and consideration. 17. On 25 August 2020, in response to the advisory opinion, counsel states, in part: a. The rebuttal opinion, which is not binding on ABCMR, is authored by an anonymous psychiatrist without any information as to their professional medical credentials or why an additional opinion was necessary to assist the Board in the first place. Instead, the opinion notes that the “Advisor” served on active duty “as both a provider and Officer in Charge of a behavioral health clinic for over a decade...” It is not at all clear whether this individual served as the Officer in Charge of a mental health clinic at or near Fort Bragg while the applicant was serving or shortly thereafter, knows the other mental health providers involved in this matter, or may have otherwise been involved in this matter prior to the issuance of this opinion. But, what is clear, this individual’s opinion and judgement is clouded by their prior experiences, and they are biased or predisposed to upholding the flawed process that denied the applicant a military retirement at the outset. b. The “rebuttal advisory” opinion does not even largely address medical issues as it includes primarily legal conclusions about regulations and authorities that call into question whether the opinion was actually drafted by a medical professional. It was also obtained solely to rebut the detailed and thorough expert opinion from the George Mason University Center for Psychological Services the applicant submitted in response to the initial advisory opinion. Because the purpose of the February 2020 opinion was to “rebut” the George Mason opinion, it distorts the facts and evidence in a way such that its conclusion was predisposed. In other words, the author of the February 2020 opinion was not allowed to submit an opinion that supported the report from George Mason University. They were only authorized to submit an opinion that was a “rebuttal” or refutation of the favorable opinion by George Mason. Based on that issue in and of itself, the Board should reject the February 2020 “rebuttal advisory” opinion. c. There is no doubt that the Board failed to obtain the “rebuttal advisory” opinion in an “an impartial, unbiased, and neutral manner.” The Board specifically requested a “rebuttal” opinion, which suggested the author of the opinion must rebut the previously uncontested findings in the favorable report from the George Mason University Center for Psychological Services. By working in the same environment, possibly the same mental health clinic, and the same flawed DES process, ABCMR failed to obtain an opinion in “an impartial, unbiased, and neutral manner.” In fact, ABCMR did just the opposite by requesting a “rebuttal” opinion from someone who had every reason to protect and safeguard the flawed process and decision-making that denied the applicant a medical retirement in the first instance. It is not surprising an individual would find no problems in the handling of the applicant’s case when this anonymous author of the “rebuttal” is possibly the product of the same (e.g. Officer in Charge of a mental health clinic) unlawful process that precluded the applicant from receiving a permanent medical retirement at the outset. d. The applicant's military record demonstrates he fell below the Army’s retention standards because his persistent PTSD symptoms continually interfered with the effective performance of his military duties. The applicant’s PTSD unequivocally and adversely interfered with his military service. At the recommendation of two mental health professionals, the applicant was limited to non-combat activities and not allowed to participate in airborne or live fire exercises because participation in field- related duties caused him to suffer flashbacks and a great deal of distress. As an infantryman, this limitation essentially prevented the applicant from performing his military duties. In the end, the Army clearly erred in failing to refer the applicant into the DES process. Counsel's complete statement is available for the board's review and consideration. 18. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System (DES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. 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. 19. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities. 20. 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 may compensate the individual for loss of civilian employability. 21. Title 38, USC, 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 an error or injustice on the part of the Army. 22. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. 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. 23. 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. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. 2. The Board reviewed the applicant’s contentions and the evidence of record, including the medical evidence submitted by the applicant and the ARBA medical advisory opinions prepared in this case. The applicant requests his military records be corrected to reflect he was medically retired – placement on the permanent disability retired list (PDRL) – based on unfitting posttraumatic stress disorder (PTSD), traumatic brain injury (TBI), and other conditions. Alternatively, he requests placement on the temporary disability retired list (TDRL) and to be scheduled for examination to evaluate whether his disability is permanent and stable for final determination. The Board determined a preponderance of the current evidence of record did not support the specific relief requested by the applicant. However, in light of the conflicting medical evidence regarding whether the applicant met retention standards / was fit at the time of service separation, the Board agreed that it would be appropriate to refer the applicant’s records to the Department of the Army Office of the Surgeon General for consideration of whether referral to the Disability Evaluation System (DES) was warranted at the time of service separation and whether the applicant’s condition(s) warrant(s) medical separation / retirement. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X : X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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 referring his records to the OTSG for review to determine if the disability evaluation he received from the Army accurately depicted his conditions as they existed at the time. a. If a review by the OTSG determines the evidence supports further evaluation, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any additional diagnoses (or changed diagnoses) identified as having not met retention standards prior to his discharge. b. In the event that a formal 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. c. Should a determination be made that the applicant should be separated or retired for disability, these proceedings serve as the authority to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay. 2. The Board further determined 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 to any relief without benefit of the review described above. X CHAIRPERSON 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, 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 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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 separation for disability. a. The disability system assessment process involves two distinct stages: the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his or 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 are either 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 retirement payments and have access to all other benefits afforded to military retirees. 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. 3. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities. The VA Schedule for Rating Disabilities is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 4. 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 at less than 30 percent. 5. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 6. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS//