ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 July 2019 DOCKET NUMBER: AR20180014322 APPLICANT REQUESTS: Correction of his records to show he was retired based on a physical disability. 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) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 2808 (Report of Medical Examination), dated 7 January 2003 * DD Form 2807-1 (Report of Medical History), dated 9 January 2003 * two Air Force (AF) Forms 3899 (Aeromedical Evacuation Patient Record) * Patient Movement Request * SF 600 (Chronological Record of Medical Care) * DA Form 3822-R (Report of Mental Status Evaluation) * memoranda pertaining to his discharge process * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) rating decision 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. The applicant states: * his severe post-traumatic stress disorder (PTSD) and other mental conditions occurred while he was deployed to Iraq * he was examined by three psychiatrists and given medication while he was Iraq * he is currently rated 100 percent disabled by the VA for PTSD and other severe mental conditions which he developed while deployed * he is currently receiving medical care from the VA and has been receiving medical care since he was discharged from the Army 3. The applicant enlisted in the Regular Army on 18 March 2003. His record shows he arrived in in Kuwait/Iraq on or around 9 September 2005. 4. An AF Form 3899 shows that on 24 October 2005, the applicant was being medically evacuated from Iraq to Landstuhl Regional Medical Center (LRMC), Germany, based on a diagnosis of panic disorder. Item 22 (Brief Narrative) of this form shows he was suffering from panic attacks which could compromised his ability to function safely in theater. A second AF Form 3899 shows he was being evacuated from LRMC to Fort Campbell, KY, on or around 29 October 2005. 5. A DA Form 3822-R shows that on 20 December 2005, the applicant underwent a command-directed mental status evaluation because he was being considered for discharge from the service. He was diagnosed with adjustment disorder with anxiety. The evaluating physician found the applicant met the retention requirements of chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). 6. The applicant's separation proceedings are not available for review; however, he provided a memorandum showing that on 11 January 2006, the applicant's commander recommended his separation from the service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 (Other Designated Physical or Mental Conditions). The commander indicated that the applicant was not pending a Medical Evaluation Board. 7. The applicant also provided a memorandum showing he was advised by his attorney of the basis for the contemplated action to separate him, its effects, the rights available to him, and the effect of any action taken by him in waving his rights. This memorandum further shows he elected not to submit statements on his own behalf. 8. The applicant's DD Form 214 shows he was honorably discharged on 14 February 2006 under the authority of Army Regulation 635-200, paragraph 5-17, by reason of "condition, not a disability." 9. On 10 June 2019, the Army Review Boards Agency (ARBA) psychologist/medical advisor provided an advisory opinion. The advisory found the available documentation showed that although the applicant received treatment for behavioral health conditions, he met medical retention standards. The advisory also found that the applicant’s military records do not support his contention that at the time of his discharge, he was suffering from unfitting PTSD. 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 12 June 2019 and given an opportunity to submit comments. He responded and provided a two-page statement in which he expressed his disagreement with the medical advisory opinion because a health care provider at Fort Campbell noted on 8 February 2006 that he was already receiving treatment for major PTSD, anxiety, and depressions symptoms. He also argues that although his DD Form 214 shows the narrative reason for his separation as "condition, not a disability," a mental condition is a disability. He also provided documents which were previously reviewed by the ARBA's psychologist/medical advisor. 11. The applicant provided a VA Rating Decision showing he is currently receiving service-connected disability compensation rated at 100 percent. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the medical advisory opinion. The Board considered the applicant’s statement and his current VA rating, noting that the VA and Army disability compensation processes are different. The Board considered the advisory official’s conclusion that the applicant met medical retention standards at the time of separation and the applicant’s response to the advisory. The Board concurred with the advising official and determined that there was no error or injustice in the narrative reason for the applicant’s separation. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the 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 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-17 provides for the separation of Soldiers on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performances of duty. Such conditions may include, but are not limited to, disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired. 3. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Paragraph 3-1 (Standards of unfitness because of physical disability) provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. 4. Title 38, USC, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. ABCMR Record of Proceedings (cont) AR20180014322 3 1