ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 August 2019 DOCKET NUMBER: AR20190000581 COUNSEL REQUESTS: the applicant be medical retired. COUNSEL'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s Brief * Medical documents * Meritorious Service Medical Order * Memorandums * Department of Veterans Affairs (VA) Medical Records * VA Decision Letter * DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) FACTS: 1. Counsel cites pertinent Army Regulations and states in part: a. The applicant has already exhausted his arguments for wrongful discharge before the Court of Claims, this does not attempt to re-litigate the wrongful separation, only the military disability issue. The Court of Claims did not render a decision on the disability benefits claim, as the Military Disability Retirement Pay Act requires a military Board to first evaluate any claims for military retirement. As this did not occur while the applicant was on active duty, this Board is the first governing Board to evaluate these claims. b. Counsel gives an outline of the applicant’s career and deployments. Counsel states on 6 November 2006, the applicant had a medical examination where he reported symptoms of anxiety, migraines, nightmares and insomnia. On his report of medical examination form, it is written that the applicant was referred to both mental health and orthopedic specialist: however, this did not happen and the applicant was honorably discharged and released from active duty 31 December 2006. c. After returning from his first deployment in 2006, the applicant left active duty and joined the Army Reserves. He tried to repair his strained marriage with his wife, but was unable to do so due to the detrimental effects of the deployment. He spent hours each day hidden in a closet, afraid to go outside. He was very depressed and anxious. This was reported on his separation physical exam, required by all Soldiers leaving active duty. He had difficulty sleeping, with intrusive nightmares, panic attacks, anxiety, difficulty being in social settings, and remained constantly hyper vigilant. He was angry, depressed and would explode for minor things. d. In 2007, the applicant received orders to return to Iraq. He deployed again to Iraq in 2008. He was there from 3 February 2008 to 19 April 2009. While deployed, he found it very challenging to function at the level expected of him due to the constant stress depression and lack of sleep. He sought medical help while deployed, and was prescribed anti-depressants and sleep aid medication. In June 2008, the applicant went through a divorce while deployed and became increasingly depressed and lonely. Despite his mental state, he was awarded the Joint Meritorious Service Medal for his service during this deployment. He was honorably discharged and released from active duty on 2 June 2009. There is no record that can be found of a post-deployment health assessment after returning in June 2009, as is required by regulation, and the applicant was not referred to or directed to complete an assessment upon his return. e. After his last deployment, the applicant received orders to work as a Medical Recruiting Officer in Orlando, Florida. He continued to struggle with symptoms of PTSD and couldn't find ways to effectively cope with his pain. Moreover, he was having difficulties performing his duties in large crowds and places with heavy noise. On 10 March 2010, he went to Patrick AFB for an appointment. In the medical notes, the applicant describes anxiety and depression. He receive a diagnosis of Anxiety Disorder NOS, and in the notes, it says he "needs to see a counselor." He was prescribed Effexor for depression and was requested to follow up in three weeks. No referrals were made or directed to mental health providers at this time. f. On 27-28 April 2010, the applicant had a PHA physical medical examination, and reported symptoms of anxiety and panic attacks, frequent trouble sleeping, depression and excessive worry. There was no follow-up mental health treatment offered or provided, and he was released without limitations, to return in twelve months with his Primary Care Manager. While working as a recruiter, in October 2010, he engaged in an inappropriate relationship with an underage female. Before he was arrested, on 1 November 2010, he tried to take his own life by carbon monoxide poisoning. He was found by a passerby, and later arrested that same day. That same day, the Army initiated a Report to Suspend Favorable Personnel Actions for the applicant. g. Upon his release on bond, the applicant underwent a Command Directed Mental Health Evaluation. The evaluation took place on 8 December 2010. During the 8 December evaluation, the notes state the applicant endorses "re-experiencing, avoidance, and hyper arousal symptoms beginning in his first deployment (2006). During 2 week leave to CONUS in 2006, he had a panic attack with flashback of Iraq mortars, palpitations, and felt like going through the window as he was eating in Cracker Barrel." Later, the evaluator wrote the applicant had "no hx depression prior to 2nd deployment where he was treated in theatre for panic attacks and depression with Zoloft for 12 out of the 15 months he remained in theater Pt reports poor sleep, difficulty concentrating since return from Iraq in 2009, exaggerated startling, and avoids crowded places. Sleeps 4-5 hours with difficulty falling and staying asleep. " h. After the 3 December appointment, he was determined to be "fit for duty, not fit for a secret security clearance, and not eligible to carry weapons. He was to be placed on a 'Code 31' profile for 3 months, and has a High-Risk status." Individual psychotherapy and medication management was recommended weekly. There was no official mental health diagnosis made at this time. In addition, the note written by A.O. states "recommended to repeat CDE in 6 months, once legal investigation resolves for reevaluation of fitness for duty and security clearance status." A code 31 is an Assignment Availability Code (AAC) for medical deferment, used by the Air Force in determining whether a Service member is Mobile or Deployable. According to AFI 41- 210, the Deployment Availability Working Group (DAWG) is to be notified if a service member receives a code 31 assignment, so he or she can properly be tracked through disability channels. There is no evidence this occurred. i. The Army served the applicant an Initiation of Elimination on 30 December 2010, requiring him to show cause for retention. The reasons listed were based on the inappropriate relationship he had with the minor female. The separation was based on an ongoing investigation in Orange County, Florida. The applicant continued seeking treatment through mental health channels, and on 12 January 2011, received a diagnosis of Adjustment Disorder with Anxiety and Depressed mood. On 21 January, he was diagnosed with Anxiety Disorder NOS, with a note to rule out PTSD, Panic Disorder, and GAD. On 17 February 2011, Dr. Z.G. diagnosed the applicant with Chronic PTSD and Major Depression, Recurrent in Partial Remission. j. The applicant continued on medication, increasing his dosage of Prozac, and Klonopin for panic attacks as needed. On 4 May 2011, another note is written by Dr. G saying that he will be continue lo monitored for mood and anxiety symptoms. Despite the applicant’s diagnosis, a mandatory Medical Evaluation Board (MEB) was not convened for further evaluation of his mental health conditions and he was not referred into the physical disability evaluation system as prescribed by governing regulation. He was not processed for an MEB or a physical evaluation board (PEB), as is required for his persistent and recurrent symptoms requiring limitations of duty (inability to carry a firearm and removal of security clearance). k. On 19 May 2011, the Board of lnquiry (BOI) was convened. The applicant was advised by counsel not to make any statement, due to the pending civilian criminal charges he was facing. There was no evidence presented to the Board about the applicant’s mental health challenges and PTSD diagnosis. As a result, the Board lasted about one hour and six minutes, and voted to separate the applicant with an Other Than Honorable characterization of service. On 19 September 2011, he was separated from the service with an Other than Honorable discharge. l. On 23 July 2012, the applicant plead no contest to the civilian charges, and received 10 years of probation. After his discharge, he petitioned the VA for benefits and assistance with his conditions. He received a disability rating of 50 percent initially for his PTSD. That rating is at 100 percent, as of 27 May 2014. He receives disability for other conditions unrelated to this complaint. In his diagnostic assessment from VA, the treating physician wrote "Veteran presents with the full panoply of cardinal PTSD symptoms. Veteran's C-File also reveals his report of stress related symptoms at the time of his post-deployment health assessments in 2006 and 2007." The psychological report state "his reported symptoms and history are easily correlated with his documented post-deployment health questionnaires and his documented mental health treatment." m. Counsel goes on to outline provisions of Army Regulation 635-40 and 40-501 pertaining to conditions not meeting medical standards being evaluated by a MEB. He further states Major Depressive Disorder is a Mood Disorder, and PTSD is an Anxiety Disorder. Both of these diagnoses required referred to an MEB once the conditions outlined in Army Regulation 40-501 are met. As is stated in the medical notes, the applicant's PTSD was diagnosed chronic and his Major Depression as recurrent. Both of these diagnoses met the criteria for referral to the Disability Evaluation System. n. According to Army Regulation 635-40 paragraph 4-3g(2), the applicant could have been dual processed for both elimination and completion of DES. For dual processing to occur, referral to MEB must occur before the date the Deputy Assistant Secretary of the Army (Review Board) approves the officer's elimination. While paragraph 4-9 gives the military the option to disenroll Soldiers from PDES as a result of certain adverse circumstances, in the applicant’s case, he did not have a civil conviction during his time on active duty to even make this a plausible explanation for not initiating an MEB in his case. In addition to failing to initiate the Disability processing system, as was required by the regulation, Title 10, USC 1177 requires a medical examination in certain instances prior to administrative separation of Soldiers under conditions other than honorable. o. The applicant was diagnosed with PTSD prior to his separation, and the diagnosis was based on his overseas deployment from the previous 24 months, he was required to have a medical examination that would allow the Board of Inquiry to determine whether his PTSD was a mitigating or extenuating factor in the cause of his misconduct. This information could have potentially changed their separation decision and recommendation for characterization of service. The applicant submits that there has been improper handling of his disabilities and mental healthcare. The procedural safeguards that are in place to make sure our Soldiers do not fall through the cracks were not followed in this case. The applicant started showing symptoms of mental illness in 2006, after returning from his first deployment. This was not followed up on. p. After his second deployment, the applicant did not have a post deployment mental health assessment completed, which would have revealed these mental struggles a second time. The 2010 Command and Directed Evaluation noted the applicant's symptoms began back in 2006, after his first deployment. It appears his misconduct in 2010 over shadowed his chances of getting the proper mental healthcare he needed. He respectfully requests this Board reevaluate his medical conditions with a consideration of both a disability retirement and also as a mitigating factor for his characterization of service. 2. The applicant’s record contains two DD Forms 214 which shows he was deployed on the following occasions: * service in Iraq from 21 September 2005 to 9 September 2006 * service in Iraq from 5 February 2008 to 29 March 2009 3. The applicant’s Officer Evaluation Reports (OER) from the periods 31 December 2006 through 25 March 2010, shows his performance was rating as “Outstanding Performance, Must Promote” and his potential for promotion to the next grade was rated as “Best Qualified.” He also received an OER for the period 26 March 2010 through 25 March 2011, which shows his performance was rating as “Satisfactory Performance” and potential for promotion to the next grade was rated as “Fully Qualified.” 4. On 20 December 2010, the applicant was required to show cause for retention on active duty based on his misconduct. The reason for elimination was the applicant had sexual intercourse on multiple occasions with a minor female, of 16 years of age on or between 9 October 2010 and 27 October 2010 and conduct unbecoming an officer as indicated by above referenced events. He was advised he had 30 calendar days from receipt of this action to acknowledge in writing and exercise one of his options to: a. Submit his request for resignation in lieu of elimination according. The request may not include an effective date since the effective date will be determined according to governing regulation. b. Apply for retirement in lieu of elimination if otherwise eligible for voluntary retirement, according to governing regulation. In doing so, his voluntary retirement application will be amended to specifically state that the application is submitted in lieu of elimination. c. In place of resignation or retirement, you may submit rebuttal matters or a declination statement and request appearance before a Board of Inquiry to show-cause for retention, according governing regulation. 5. On 4 February 2011, in response to the elimination, the applicant made the following statement: a. He was unable to make any statement, sworn or unsworn, at this time under advice of counsel because as the commander is well aware, he has pending civil criminal charges. Any statement he makes may be used in the court of law. Therefore, he is the untenable position of being required by this command to show cause, where for all practical purposes he is unable to do so. b. He respectfully requested the command hold this processing of an initiation of elimination procedure and the decision of sending same to a BOI be placed on an indefinite hold until such time as pending civil criminal matters are fully adjudicated and he is in a position to respond to same. c. The granting of his request for an extension until the completion of civil criminal is both in keeping with the uniformed code of military justice and Army regulations. d. The withholding of a decision or referral of this matter to a BOI will cause no detriment to the Army or be prejudicial to good order or discipline. The refusal to grant this indefinite extension will cause irreparable harm to him and will require him to seek injunctive relief to prevent the same. e. There is recent precedent for the granting of an indefinite hold in this case. In the Navy, a Captain was charged with serious criminal matters including kidnapping and attempted murder. Per administrative processing, his case was placed on indefinite hold until the completion of criminal matters. f. There are meritorious matters that can be brought forth in rebuttal to the allegations put forth against him which will be addressed when he is able to do so. g. It is his intention of requesting a BOI should the Command wish to go forward after the conclusion of the civil criminal case. He ask that his case be referred to a BOI at such time when he is able to defend himself, and not before. 6. On 9 September 2011, an Investigating Board of Officers found the applicant had an inappropriate relationship with a 16 year old minor female, had knowledge she was a 16 year old minor, engaged in sexual activity with the 16 year old minor, committed acts of personal misconduct, and demonstrated conduct unbecoming of an officer. The board recommend the applicant be discharged and his service be characterized as Other Than Honorable. 7. Orders show, effective 23 September 2011, the applicant was discharged from the Unites States Army Reserve/Active Guard Reserve. The orders show he was to be issued an UOTHC discharge certificate. 8. On 3 July 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The ARBA senior medical advisor stated in part, it is acknowledged that the applicant has been diagnosed with PTSD. This determination alone, however, does not automatically mean that military medical disability/retirement is warranted. It is important to understand that the VA operates under different rules, laws, and regulations when assigning disability percentages than the Department of Defense (DOD). In essence, VA will compensate for all disabilities felt to be unsuiting. DOD does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting and line of duty. The applicant’s medical records not support the existence of a boardable behavioral health condition at the time of discharge. The applicant’s military medical records indicate that the applicant did meet medical retention standards. There is no behavioral health condition that would mitigate the misconduct that led to his discharge. A copy of the complete medical advisory was provided to the Board for their review and consideration. 9. In response to the advisory opinion, counsel states, the advisory opinion concluded the applicant was fit for duty, despite diagnoses of PTSD and Major Depressive Disorder. However, the requirements for referral to the IDES system are clear. “Persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment” require referral to a MEB. The advisory opinion notes the applicant was found “fit for duty, but not eligible for security clearance no weapons for 3 months.” This meets the criteria for limitations of duty or duty in a protected environment. By regulation, he should have been referred to the integrated disability evaluation system (IDES) for further evaluation. 10. The Under Secretary of Defense Directive-Type Memorandum (DTM) 11-015, 19 December 2011, provides for IDES. The IDES is the joint Department of Defense (DOD) - VA process by DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and VA determine appropriate benefits for Service members who are separated or retired for a service- connected disability 11. 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. 12. 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. 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. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service- connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service and evaluations, the serious misconduct, initiation of elimination actions, his diagnosis of PTSD and the reason for his separation. The Board considered the advisory opinion and the rebuttal by counsel. The Advising Official acknowledged the applicant’s PTSD diagnosis, but found the applicant’s military medical records indicate that the applicant did meet medical retention standards. After reviewing the advisory and the records provided and the applicant’s rebuttal, the Board concurred with the advising official. Based on a preponderance of evidence, the Board determined that the reason for the applicant’s separation was not in error or unjust; medical retirement was not supported by the evidence. 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. The Under Secretary of Defense Directive-Type Memorandum (DTM) 11-015, 19 December 2011, provides for IDES. The IDES is the joint Department of Defense (DOD) - VA process by DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and VA determine appropriate benefits for Service members who are separated or retired for a service- connected disability 2. 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. 3. 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. 4. 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. 5. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. ABCMR Record of Proceedings (cont) AR20190000581 2 1