ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 August 2019 DOCKET NUMBER: AR20180013960 APPLICANT REQUESTS: requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically discharged for disability instead of separated by reason of a "condition, not a disability." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * personal statement * documents from the Department of Veterans Affairs * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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. His service to this great nation was cut short due to high anxiety levels he was experiencing, and his inability to effectively sleep, which began unfolding about a month into his deployment to Baghdad, Iraq, approximately two and a half years into his contract. The symptoms listed above were conveyed to the army doctor he saw on the very first appointment he had with him. These symptoms have since been diagnosed and acknowledged as post-traumatic stress disorder (PTSD). Unknown to him at the time of his discharge, was his reason for discharge was/is not defined clearly in the doctor notes or in his records, and was/is listed as a condition, not a disability on his DD Form 214. b. In 2009, he didn't know what PTSD was. He had heard the term but not much more than that. He didn't know what the symptoms were and wasn't pushing for that diagnosis to be a reality, he certainly didn't want it to be. All he knew was he couldn't sleep and was having increased levels of anxiety. The reality is that PTSD is unique to each person because each person is unique. Because of that fact, and despite a million different books on PTSD, he didn't know still don't know how PTSD starts, what it does and how it can be helped or even lessened. What he did do was try his best to figure out what was going on with him. Since his discharge, he has actively pursued treatment, help and probably most importantly, answers to the questions that he doesn't have. That pursuit is how he has a diagnosis. c. His PTSD diagnosis came on appeal some years after his discharge in 2009. Unbelievably, the army initially had the stance he was a quitter, and attempted to deny his service was even honorable when they were told by army medical that he was potentially separating from the army and the medical reasons for that separation. The army never gave him an option other than they don't know why he cannot sleep, and surprisingly fought him every step of the way. He knows the character of his service and knows who and what he is loyal to. Those loyalties are to his family and to this country. He was entitled to receive nothing less than an honorable discharge because his service was honorable. Since they had no basis to make these groundless assertions, he challenged the army on principle. Despite the opposition of the army, he was able to be honorably discharged. d. He registered with VA at the West Los Angeles campus in California early on when he returned to civilian life. He immediately followed the steps to have doctors interview him and give their opinion as to why he could not sleep and how to lessen the anxiety levels he was having. He was given an appointment with mental health personnel to determine what the issue was. He did the interview and was forthright and honest. He was denied any type of explanation or diagnosis. This decision was appealed and he was re-interviewed by an oversight group that analyzes all VA denials. Had it not been for them, he would be in the same place but not compensated. It took 3 years for the denial to be overturned. It took 6-7 months after those 3 years to be notified of the reversal. The reversal was actually a definitive PTSD diagnosis. PTSD is considered a disability by the VA. e. By the time the PTSD diagnosis was made, the sleep and anxiety problems had become much worse than they were at the onset, simply due to not being addressed by qualified personnel. No one would help him at VA. In addition to the stress of all of this, in this time period, his best friend died and his wife left him, took the house and most of his belongings, including the pets. He was certain his PTSD diagnosis would change his DD Form 214. However, he was told it could not be changed. He was later told by a fellow veteran that a DD Form 214 can most definitely be changed if there is cause. He immediately set out to submit the request to have it changed. The problem was that no one knew what form to submit and who to submit it to. f. His sleep and anxiety concerns had grown more severe. A suggestion from a fellow worker and veteran, encouraged him to pursue this matter yet again. Unfortunately, no one knew what document he would submit and who he would submit it to. He googled feverishly and still, hit a wall. It wasn't until January 2017, a patient he was assisting informed him about emailing the Army Review Board and addressing this once again. Due to little success in previous exhaustive endeavors to submit this request to the appropriate people, he reluctantly found the method to contact the Army Review Board. It took many years and probably has costed him unknowable damage, PTSD and injuries wise, but he thought better late than never. g. He filled out the forms and sent it to the address he was instructed to send it to. A few months later the envelope he sent was returned due to it being the wrong address. He was convinced he was out of options. As he was getting more severe symptoms from the PTSD and increased persistent pain in his shoulder, he became very depressed. The continued and increased severity of his PTSD caused him to have absences from work. It was causing problems in his life at that point. His marriage and friendships were deteriorating, forcing him and his family to make the decision to enter into an inpatient counseling program. He kept his employer informed throughout the entire process and kept them informed on what was happening with him and what was necessary to do to mitigate this destructive problem. The PTSD had become a problem. His sleep issue became so severe he lost consciousness while driving and hit a car and then a tree. He doesn't know how he survived the accident. The accident destroyed what normalcy was left in his life. He and his wife were constantly arguing about money and the car he wrecked. h. Work had begrudgingly tolerated him up to this point, but they never assisted or attempted to assist or do anything other than disciplinary actions. He was a good worker and pleasant with all workers and patients alike. The VA started submitting termination proposals to him because they had no patience for his PTSD. They didn't care about helping him with it. They only wanted a combat veteran who is service- connected gone. The first termination proposal was unsuccessful. The director was claiming to support me and allowed for him to be away from his station to get the help he needed, but behind the scenes was making a case to fire him. His sleep and injuries are most definitely worse and his life at this point is a mess. The VA has turned its back on him. His life has turned into a nightmare from PTSD and the problems that come with it. It's only by chance and by refusing to give up, that he came across this address. He is on the brink of being on the streets and this shouldn't be happening. If someone at the VA saw what has been happening to his life, he would think they would have helped. He told anyone who would listen. The VA decided to ignore him and his life has spiraled. 3. The applicant entered active duty on 11 June 2007. He served in Afghanistan from 6 June 2006 through 7 March 2009. 4. A Report of Mental Status Evaluation, dated 3 June 2009, shows the applicant was diagnosed with adjustment disorder with anxiety and depressed mood. His PTSD screening was negative and psychiatric evaluation also supported no PTSD or traumatic brain injury. The form further shows he met retention standards and had a condition that did not warrant disposition through medical channels. It was also determined the applicant’s diagnosis represented the development of significant emotional and behavioral symptoms in response to military stressors and his ability to adapt fully to military life would not occur. 5. On an unspecified date, the applicant’s immediate commander notified him of the intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-17. The reason for the proposed action was the applicant had been diagnosed to have a physical or mental condition, not amounting to a disability that interferes with assignment to or performance of duty. The extent of the condition is so severe that the applicant’s ability to function effectively in a military environment is significantly impaired. His commander recommended he receive an honorable discharge. The commander advised the applicant of his available rights and the applicant acknowledged receipt on 31 July 2009. 6. On 3 August 2009, after consulting with counsel, the applicant waived consideration or personal appearance before an administrative board (as long as he received a characterization of service no less than honorable) and elected not to submit statements in his own behalf. He acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him. 7. On an unspecified date, an authorized official directed the applicant be released from the U.S. Army prior to the expiration of his current term of service under provision of Army Regulation 635-200, chapter 5-17. It was directed the applicant he receive an honorable discharge. 8. His DD Form 214 shows he was discharged on 4 September 2009, by reason of a "condition, not a disability" under the provisions of Army Regulation 635-200, paragraph 5-17, with honorable service. He completed 2 years, 2 months and 24 days of net active service this period. He was awarded or authorized the Army Commendation Medal, National Defense Service Medal, Iraq Campaign Medal with Campaign Star, Global War on Terrorism Service Medal, Army Service Ribbon, and the Overseas Service Ribbon. 9. The applicant provides a Rating Decision from VA, dated 20 March 2013, which indicates the applicant was service connected for PTSD and granted an evaluation of 50 percent effective 5 September 2009. 10. An advisory opinion, dated 19 June 2019, provided by a Medical Advisor to the Army Review Boards Agency, states in part, there is no evidence the applicant met criteria for PTSD at the time of separation or was otherwise psychiatrically unfit per Army Regulation 40-501. The applicant’s separation under a 5-17, Condition not a Disability, was appropriate and no change recommended. A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. The applicant was provided a copy of the advisory opinion on 25 June 2019, and was given an opportunity to respond. He did not respond. 12. Army Regulation 635-200, paragraph 5-17, states commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. 13. 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. 14. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. 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. 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. 15. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 16. 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 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and a medical advisory opinion. The Board considered the applicant’s statement, the reason for his separation, the available medical evidence and the conclusions of the advising official. The Board concurred with the advising official who stated that there was no evidence of PTSD at the time of the applicant’s separation and there was no evidence he failed to meet medical retention standards. Based on the conclusions of the advisory opinion and the preponderance of evidence, the Board determined that the reason for the applicant’s separation was not in error or unjust. 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. 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. 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 635-200, paragraph 5-17, states commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. 3. Army Regulation 635-40 establishes the Army 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/her 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. 4. Army Regulation 40-501 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 using the VA Schedule for Rating Disabilities (VASRD). 5. Title 10, USC, 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, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES when: * they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board * receive a permanent physical profile rating of 3 or 4 and are referred by an MOS/Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, HRC c. The PDES assessment process involves two distinct stages: the medical evaluation board (MEB) and the 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/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 on disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. d. The mere presence of 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/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. 6. 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 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.