ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 August 2019 DOCKET NUMBER: AR20180016271 COUNSEL REQUESTS: the applicant’s records be corrected to reflect a change from an improper administrative discharge for adjustment disorder to a medical discharge due to her dysthymic disorder or-in the alternative- separation due to post-traumatic stress disorder (PTSD) or chronic adjustment disorder. If requested relief is not found to be warranted, counsel requests the applicant be placement on the Temporary Disability Retirement List (TDRL). Additionally, counsel requests all references to the administrative separation be removed from the applicant’s discharge certificate. COUNSEL'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant’s statement * 27 page Brief with 31 exhibits 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. Counsel provides a 27 page brief citing case law and Army regulations, and states, in part: a. The applicant served honorably in the Louisiana Army National Guard (LAARNG) from 25 January 2003 to 29 October 2007 and subsequently in the United States Army from 30 October 2007 to 25 March 2009. Prior entering the military, she had a normal psychiatric profile. During the course of her military service, she developed a psychological disorder that caused her fitness for the military to suffer. From 2008 to 2009 during the last two years of her military service, she was brought to the emergency room repeatedly after attempting to commit suicide by overdosing on medication on multiple occasions. During this short time period, she received various diagnoses, including diagnoses for both dysthymic disorder and adjustment disorder. She was discharged from the military on 25 March 2009, for adjustment disorder, which the discharge papers noted was a "condition, not a disability," thus amounting to an administrative separation. Since her discharge she has continued to suffer from severe psychological disabilities including the dysthymic disorder that developed during her time in the military and the post-traumatic stress disorder (PTSD) with which she was later diagnosed with. It is clear that at the time of her discharge, she was suffering from a psychological disability severe enough that she should have been medically retired rather than administratively separated for a mere condition. b. The applicant began her service with a "normal" psychiatric profile and won many awards in the course of her service. On 11 December 2002, at a physical examination just prior to enlisting in the ARNG, she was found qualified for enlistment, with no defects or diagnoses. Thereafter, she served honorably in the ARNG from 25 January 2003 to 29 October 2007 as a carpentry and masonry specialist. While serving in the ARNG she deployed to Afghanistan as part of Operation Enduring Freedom (OEF). The events that took place during her time in Afghanistan have had a significant, continuing impact on her psychological well-being. From 19 April 2004 to 21 April 2005, she was deployed to Forward Operating Base (FOB) Salerno outside Khost, Afghanistan. FOB Salerno is located very close to the border with Pakistan and was mortared for the first time just one week after she arrived. Mortar attacks were a common occurrence, often happening no less than three to four times per week. c. The applicant’s military duties at FOB Salerno included being assigned to a security detail supervising local Afghanis working on another American military base. During one such mission, this base was attacked repeatedly. Due to the high number of injuries and a shortage of medics, the applicant was also ordered to assist at FOB Salerno's Combat Support Hospital. She vividly recollects one scene, stating that she "walked up on some tents that had Marine casualties and saw one dead, and another hung up on a pole and covered in shrapnel, who later on died as well." Not long after seeing these horrific American military casualties, she began having night terrors and flashbacks to the incident. The applicant and her squad were later tasked to another base in Afghanistan to build showers and latrines. During this time, she was ordered to participate in combat missions with an infantry unit from the 82nd Airborne Division. These missions required the applicant to stop and frisk female Afghanis that the unit encountered on patrol. The applicant was ordered to support the infantry unit in this capacity because she was the only female soldier on the base. d. During her second of these missions, she discovered a pocket knife and hand grenade on one of the local females. This woman resisted and would not surrender the hand grenade after repeated commands to do so. Eventually, one of the paratroopers was forced to shoot and kill the woman. When describing her reaction to the incident, the applicant stated, "I was frozen. I honestly didn't feel anything. I wasn't scared. I wasn't sad. To be honest, it was in a way an adrenaline rush. I didn't let anyone know how I felt nor did anyone ask. We kept on with our mission." Afterwards, the applicant was afraid of discussing her traumatic experience with anyone for fear of repercussions because, at the time, females were not permitted to engage in combat. The applicant further recounts that "over the course of a year or so, she started becoming depressed and suicidal." Upon her return to the United States, from August 2005 to December 2005, she was activated for emergency relief in response to Hurricane Katrina. From December 2005 to October 30, 2007, she lived as a civilian and struggled to hold a job. During this less-than-two-year time period, she held four different jobs. The applicant describes herself during that time as "anti-social, easily set off, impatient, and depressed." e. The applicant met her now ex-husband at Fort Hood Texas and they were married in May 2008. She states that he was emotionally and physically abusive during the entirety of their relationship, which prompted a spiral into a "deep depression." Around this time, the applicant began seeing a private counselor. In 2008, she visited the Darnall Army Community Hospital's Psychiatry Unit on several occasions in psychological distress. On 27 June 2008, she visited the unit complaining of crying spells, loss of energy and interest, and exhaustion for no reason, which she noted she had been feeling for about two years at that point. At this visit, she was diagnosed with dysthymic disorder and began taking the drug Effexor, which is a serotonin- norepinephrine reuptake inhibitor commonly used to treat depression. On 29 July 2008, she again visited the unit, requesting to change her medication. There, she complained that she felt "stuck on a plateau and felt no sense of progress; instead she just felt numb." Her medical report from this visit noted that she was "adjusting to a new marriage which she had no problems." The applicant was again diagnosed with dysthymic disorder as a result of this visit. f. On 18 August 2008, the applicant was seen again at the Unit for a medical evaluation. She was diagnosed with dysthymic disorder; her depressive symptoms included "sleep disturbance, loss of interest in recreational activities, poor appetite, and depressed mood many days," but the medical report noted that her symptoms "appear in remission." However, just two days later, on 20 August 2008, the applicant overdosed on alcohol and her antidepressant, Effexor. She was promptly admitted to the emergency room. An emergency room screening report noted the applicant had a history of depression and that she overdosed because her "spouse shut her out and refused to communicate during an argument." She was then discharged on 22 August 2008 with a diagnosis of adjustment disorder with depressed mood. A few weeks later, on 7 September 2008, she was again seen in the emergency room after overdosing on Effexor in another suicide attempt. The medical records from that visit noted depression, a history of depression, flat affect, and superficial cutting on her right forearm. While in the emergency room, the applicant reported she took an overdose of her prescribed medication "due to feeling depressed." She was discharged three days later on 10 September 2008, with diagnoses of adjustment disorder with mixed disturbance of emotions and conduct, alcohol abuse unspecified use, dysthymic disorder, poisoning by antidepressant, suicide and self-inflicted poisoning by tranquilizer/psychotropic agent, and counseling for marital and partner problems, unspecified. g. In the days following this second suicide attempt, the applicant was seen at triage multiple times. It was noted that she "had a long history of depression and suicide ideation and attempts." She was diagnosed with major depression recurrent moderate. According to records from the triage center, she "reported 2 suicide attempts in the past 2-3 weeks" due to "multiple stressors." According to the records, significant stressors included a no contact order with her husband and her placement in the barracks. Her command was also consulted by her health care providers on this date. For the next couple months, the applicant visited the Unit and triage multiple times. She participated in at least nine group therapy sessions, including one on 16 September 2008, where she reported "no dangerous thoughts . . . desire for a health [sic] recovery, not wishing to be dead, not thinking about suicide, and no homicidal thoughts" and also reported "feeling sad much of time." At another on 8 December 2008, she expressed concern "that seeking help was not helpful for her military career and intent to serve on active duty until retirement." On 21 October 2008, the applicant reported at follow-up appointment at the Unit that she fell asleep at lunchtime the day before, missed an appointment, and was now in trouble at her unit. On 30 December 2008, she was seen again at the Unit, where she reported a history of depression and "a worsening of depressive symptoms with frequent mood swings, racing thoughts and impulsivity." On 7 January 2009, she was seen for an evaluation at the Unit, where she reported "that her spouse had been physically and emotionally abusing her and that she didn't tell anyone in fear of retaliation and didn’t want to get him in trouble. She admitted to frequent mood swings, racing thoughts and difficulty sleeping." The diagnoses she received during this time included adjustment disorder with depressed mood, dysthymic disorder, and partner relationship problems. h. On 8 January 2009, the applicant was admitted to Darnall Army Community Hospital for inpatient psychiatric care after overdosing on "30 seroquel" the previous night. She was found unconscious in her home after missing morning formation. Emergency room records from that date note that she felt depressed due to marital issues and that her husband had been physically abusing her. In addition, she reported "that she had been having mood swings prior to starting the seroquel" and that "she felt this was related to the abuse by her husband. After this third suicide attempt, she was discharged on with a primary discharge diagnosis of adjustment disorder with depressed mood. Both major depression and personality disorders were "ruled out" during this hospital stay, and this was the diagnosis used on the notification memorandum in detailing why she was being administratively separated. i. On 20 January 2009, the applicant participated in a group counseling session where there was a discussion on the "factors in determining whether a Medical Evaluation Board (MEB) or Chapter 5-17 should be considered for Soldiers departing the Army with mental health issues." It was noted that at this session the applicant accepted, after initial resistance, that she would be receiving a Chapter 5-17. On 21 January 2009, the applicant noted at an appointment at the Unit that she just wanted to sleep all day and not to kill herself and that she would like to stay in the Army and it was also noted recent emotional stress and a history of physical and emotional abuse by her husband. At this time, she was diagnosed with dysthymic disorder, adjustment disorder with disturbance of emotions, and partner relationship problems. After her January 2009 suicide attempt, the applicant was administratively separated from the military based on a diagnoses she received of adjustment disorder with depressed mood. However, in her 27 January 2009, Report of Medical Assessment, the applicant reported she had "3 attempts of suicide from Sept 08-Jan 09" and that she intended to seek disability for depression, PTSD, adjustment disorder, and domestic abuse. Other than an adjustment disorder and partner relational problems, none of the foregoing issues which would give rise to a medical retirement were cited in her discharge papers. j. After being discharged, the applicant she underwent a Compensation and Pension exam with the Department of Veterans Affairs (VA). She was diagnosed with dysthymic disorder. She discussed her deployment to Afghanistan in this examination. She also recounted that during her Hurricane Katrina deployment she "witnessed the dead bodies of animals and humans lying on the side of the road, gang killings, and people with nothing left." Furthermore, she reported she suffered a deep depression and began using alcohol to self-medicate. On 1 June 2009, VA granted her service- connection for dysthymic disorder evaluated at 10 percent disabling and for residuals fractured left wrist evaluated at zero percent disabling, both of which were effective 26 March 2009. At this time, VA noted the "service treatment records show an assessment of adjustment disorder during service, subsequently changed to major depression, and changed again to dysthymic disorder." As of 6 February 2012, her combined service connection evaluation remained at ten percent. In 2016, the applicant was diagnosed with PTSD. During that time, she was struggling to keep a job and continue her education, leading to significant financial hardship. She moved to Louisiana in the summer of 2017, and has since worked for three different companies. She has struggled to keep jobs due to her psychological situation, and she continues to rely on family for financial assistance with obtaining the psychological and medical care that she needs. k. The U.S. Department of Defense has laid out extensive guidelines for the discharge of active duty service members. The Secretary of the Army has augmented these guidelines and requirements, especially with respect to physical or mental conditions such as those under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 5-17. As a result, the Army must follow specific procedures before separating a soldier for adjustment disorder, as set forth herein. In the applicant's case, the Army failed to adhere to these guidelines, as the applicant was not afforded the "ample opportunity" required under Army Regulation 635-200, Chapter 5-17 to overcome her deficiencies and verify whether she was in fact suffering from adjustment disorder. While it is arguable whether she was suffering from adjustment disorder at all, it is at the very least clear that she was suffering from more than just adjustment disorder at the time of her discharge. Because she was diagnosed with dysthymic disorder approximately nine months prior to her discharge and because her depressive symptoms persisted well past six months, the Army should have given the dysthymic disorder's debilitating effects greater consideration. Today, the applicant not only remains disabled from her dysthymic disorder but also has been diagnosed with PTSD, a condition likely to have served as an additional basis for interference with her effective military performance. For these reasons, the Army should not have discharged her for adjustment disorder; rather, she should have been medically retired because of her dysthymic disorder. Furthermore, all references to adjustment disorder or "Condition, Not a Disability" should be removed from her discharge certificate. l. Counsel argues that the applicant’s military records should be corrected to show she is permanently medically retired for dysthymic disorder at 30 percent or higher. Counsel contends the applicant was improperly diagnosed with an adjustment disorder. Adjustment disorder is a condition where emotional or behavioral symptoms develop "in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s)." It is a temporary condition, as symptoms must resolve within six months of the termination of the stressor. Adjustment disorder is considered a "mental condition not amounting to disability." Merely having adjustment disorder does not automatically disqualify a service member from military service. Rather, a service member may be disqualified when the adjustment disorder is "recurrent and causing interference with military duty." For a service member to be separated from the military on the basis of adjustment disorder, the adjustment disorder must "potentially interfere with assignment to or performance of duty." Separation for adjustment disorder pursuant to Army Regulation 635-200 "may not be initiated until the soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records." A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. m. Counsel further contends the applicant suffered from dysthymic disorder, not adjustment disorder. Dysthymic disorder is a chronically depressed mood that occurs for most of the day, more days than not, for at least 2 years. Symptoms can include poor appetite or overeating, insomnia or hypersomnia, low energy or fatigue, low self- esteem, poor concentration or difficulty making decisions, and feelings of hopelessness. For a diagnosis of dysthymic disorder, symptom-free intervals can last no longer than 2 months. Many symptoms of dysthymic disorder overlap with PTSD. For example, with both depression and PTSD, one may have trouble sleeping or keeping their mind focused. One may not feel pleasure or interest in things they once enjoyed. It is possible to have both depression and PTSD at the same time. Moreover, either dysthymic disorder or depression, like PTSD, can be triggered by stressful or traumatic experiences. n. In February 2009, five months after her initial adjustment disorder diagnosis, the applicant was notified that her commanding officer was recommending her for discharge. The notification memorandum, however, cited the applicant’s adjustment disorder diagnosis from 13 January 2009. The applicant was only given a little over two months from this date before being discharged on 25 March 2009, far fewer than the six months that would have been necessary to determine if she did in fact suffer from adjustment disorder. Such a short time span hardly satisfies the "ample opportunity" standard required under Army Regulation 635-200. On the other hand, if the date of diagnosis used was the first time she was diagnosed with adjustment disorder, she was not discharged until seven months later. Under these circumstances, the fact that her symptoms persisted past six months demonstrates she was not suffering from a mere adjustment disorder. Rather, the more appropriate diagnosis was dysthymic disorder, a more permanent condition that she was first diagnosed with two months before she was ever diagnosed with adjustment disorder. Accordingly, the Army clearly erred in failing to explore the debilitating effects of her dysthymic disorder before deciding to discharge her for adjustment disorder. o. Counsel goes on to discuss changes to DoD Directive 1332.14 (now DoD Instruction 1332.14), concerning Soldiers being discharged due to personality disorders. Counsel states, in part, ABCMR should take note of DoD's 2008 changes to regulations governing personality disorder discharges, as the same wrongful use is evidenced here but with the label of "adjustment disorder." DoD's policy changes were meant to rectify the military's misuse of personality disorder discharges for the purpose of expediency and cost-saving. Precisely the same concerns are implicated in this case. Here, for the apparent purpose of expediency and cost-saving, the Army discharged the applicant for adjustment disorder even though her symptoms persisted well past the six month window attributed to adjustment disorder. Moreover, because she was repeatedly diagnosed with dysthymic disorder beginning almost a year before her discharge and continues to suffer from dysthymic disorder and PTSD. The evidence overwhelmingly suggests the applicant was suffering from one or both of these compensable disabilities at the time of discharge. Finally, given the degree of the applicant's symptoms and the fact that she attempted suicide on three separate occasions before her discharge, a disability rating of at least thirty percent is warranted. It is in the interest of public policy that the ABCMR retroactively correct not only wrongful personality disorder discharges but wrongful adjustment disorder discharges as well. Therefore, justice requires the applicant’s military records be corrected to reflect that she is permanently medically retired. p. Counsel states the applicant should have been referred to a MEB but was denied. He contends if she had been referred to a MEB, it would have been determined her dysthymic disorder caused her to fall below the Army’s standards of medical fitness. The record contains compelling evidence that the applicant’s persistent dysthymic disorder symptoms interfered with her effective performance of military duties. Not only does the Army's decision to administratively separate the applicant offer evidence of such interference, but she repeatedly missed military obligations due to those hospitalizations following each of her three suicide attempts. As a matter of law, the Army would have been required to forward the case to a Physical Evaluation Board (PEB). AR 40-501 states that soldiers who do not meet the required medical standards will be evaluated by an MEB and referred to a PEB. This mandate is echoed by the regulation that sets forth the policies and procedures for the Army Physical Disability Evaluation System, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), which states that the board will recommend referral of the Soldier to a PEB if an MEB determines that a soldier does not meet retention standards. q. Accordingly, a soldier must be referred to a PEB if a diagnosis of dysthymic disorder falls below retention standards. Given that the applicant was not referred to an MEB and subsequently to a PEB, the Army failed to follow its own regulations. PEB would have found a disability rating of 30 percent or higher because the evidence shows the applicant’s disability made her unfit for continued military service. A PEB would have gone on to decide the degree of her disability under the VA's disability rating schedule. A service member needs only a disability rating of thirty percent in order to be retired from the military. Counsel goes on to reiterate his contentions citing governing regulations and a previous court decision. Counsel’s complete 27 page brief is available for the board’s review. 3. Counsel provides a 4 page statement from the applicant which largely reiterates points outlined in counsel’s brief. 4. After having prior enlisted service in the ARNG, the applicant enlisted in the Regular Army and entered active duty on 30 October 2007. 5. A Report of Mental Evaluation, dated 13 January 2009, shows the applicant was diagnosed with adjustment disorder with depressed mood. There was no evidence of PTSD or traumatic brain injury (TBI). 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 represents the development of significant emotional and behavioral symptoms in response to military stressors and family issues, and that her ability to adapt to military life is unlikely. Continued service in the military is expected to result in increased risk of harm to herself or others and limits her ability to deploy and/or satisfy duties as required in her military occupational specialty MOS. The applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in administrative proceedings. It is also recommended she not be allowed access to firearms or weapons unless cleared by a credentialed mental health provider. It was also recommended she not be allowed to deploy unless cleared by a credentialed mental health provider. It was further recommended she be administratively separated in accordance with Army Regulation 635-200, Chapter 5-17, as it was thought to be unlikely she would be able to successfully adapt to military life and stressors. 6. On 6 February 2009, the applicant’s immediate commander notified her of the intent to initiate separation action against her under the provisions of Army Regulation 635- 200, paragraph 5-17. The reason for the proposed action was the applicant had been diagnosed with adjustment disorder with depressed mood and it was determined her diagnosis represented the development of emotional and behavioral symptoms in response to military stressors, and her ability to adapt to military life was unlikely. Her 8 commander recommended she receive an honorable discharge. The commander advised the applicant of her available rights and the applicant acknowledged receipt. 7. On 7 February 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), waived consulting with counsel and representation by military counsel or civilian counsel at no expense to the government, and elected not to submit statements in her own behalf. She acknowledged she understood she might expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to her. 8. On 2 March 2009, an authorized official directed the applicant be separated released from the U.S. Army under provision of Army Regulation 635-200, chapter 5-17 Mental Conditions). It was directed the applicant he receive an honorable discharge. 9. There is no indication that the applicant was recommended for entry into the Physical Disability Evaluation System (PDES) or that she underwent a MEB or PEB. 10. Her DD Form 214 shows he was discharged on 25 March 2009, by reason of a "condition, not a disability" under the provisions of Army Regulation 635-200, paragraph 5-17, with honorable service. She completed 1 years, 4 months and 26 days of net active service this period. She was awarded or authorized the Army Achievement Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon, Combat Action Badge, Armed Forces Reserve Medal with “M” Device, and the Overseas Service Ribbon. 11. An advisory opinion, dated 1 July 2019, provided by a Medical Advisor, Army Review Boards Agency, states in part, a review of the available documentation found evidence of a medical disability or condition which would support a referral of her record to Integrated Disability Evaluation System (IDES) for consideration of MEB/PEB. Army Regulation 40-501 mandates that a diagnosis of a Mood Disorder, such as Dysthymic Disorder, be referred to MEB if the mood disorder results in the persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalizations. In the applicant’s case, she was psychiatrically hospitalized on three separate occasions for issues related to her underlying mood disorder. A complete copy of the medical advisory is available for the Board’s review. 12. In response to the advisory opinion, counsel submits the following rebuttal statement: a. The applicant agrees with the Agency's findings that; the record supports the existence of Dysthymic Disorder, a mood disorder, at the time of her discharge; the record supports she did not meet medical retention standards in accordance with Army Regulation 40-501; and she likely had a medical disability or condition at the time of discharge, specifically Dysthymic Disorder; however, she disagrees with the Agency's recommendation that her case be referred to IDES. It would be improper in this case because a determination has already been reached that the applicant’s Dysthymic Disorder fell below retention standards and rendered her unfit for continued military service and the record demonstrates that her Dysthymic Disorder would have warranted a 70 percent rating at the time of her discharge. b. At the time of her discharge, had the applicant been properly referred into IDES and evaluated by a MEB and PEB, she would have been medically retired. During her service, she experienced symptoms that would have required her referral to an MEB, as evidenced by the advisory opinion's recognition that she did not meet medical retention standards. The MEB would then be required to refer her case to a PEB. The PEB would have been required to determine whether she was unfit for continued military service. Due to her symptoms, including depression and suicidal ideation that resulted in multiple hospitalizations as a result of her Dysthymic Disorder, she was unable to discharge her duties as a soldier and petroleum supply specialist. Moreover, given the fact she separated for a condition now known to be Dysthymic Disorder under a regulation that required the condition "potentially interferes with assignment to or performance of duty" she would have been found unfit for service. Following a finding that she was unfit for continued military service, the PEB would have to determine the degree of her disability. c. In order to qualify for military retirement, she needed only attain a disability rating of 30 percent. She would have met and exceeded this rating requirement. Her symptoms at the time of her discharge would have merited a 70 percent disability rating according to Schedule of Ratings-Mental Disorders due to her suicidal ideation and significant depression. The applicant qualifies for and should be medically retired. 13. 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. The applicant respectfully requests that she be medically retired due to Dysthymic Disorder instead of referred to IDES. 14. 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. 15. 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. 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. 16. 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. 17. 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 that applicant’s request, supporting documents, evidence in the records and a medical advisory opinion. The Board considered the applicant’s and counsel’s statement, the available medical evidence regarding her conditions and treatment while on active duty, the reason for her separation and the conclusions of the medical advising official. Based on a preponderance of evidence and the recommendation of the advising official, the Board determined that the applicant should have been afforded consideration through the integrated disability evaluation system. Therefore, the Board determined that action is required to correct an injustice. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. 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 her records to the Office of The Surgeon General for review to determine if the conditions that led to her separation warranted consideration for IDES processing. a. If a review by the Office of The Surgeon General determines the evidence supports it, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any diagnoses identified as having not met retention standards prior to her discharge. b. In the event that a formal PEB becomes necessary, the individual concerned may be issued invitational travel orders to prepare for and participate in consideration of her 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 her the appropriate medical separation with pay retroactive to her original separation date or entitlement to all back pay and allowances associated with medical retirement. 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. 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.