ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 August 2019 DOCKET NUMBER: AR20190002705 COUNSEL REQUESTS: a personal appearance before the Board, and that the applicant be returned to active duty to undergo a physical evaluation board (PEB) for consideration for medical retirement in lieu of honorable discharge due to non-retention on active duty. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s statement * Medical documents * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Orders * Power of Attorney * Notification for Potential Denial of Continued Active Duty Service under the Qualitative Management Program (QMP) * Rebuttal to QMP with 7 letters of support FACT 1. The applicant states: a. He was separated from active duty on 1 November 2016, without a PEB being conducted although he had been diagnosed with post-traumatic stress disorder (PTSD) due to his experiences during his deployments and the death of his infant daughter. He did not have a medical evaluation board (MEB) before his discharge. b. During his almost 12 years of active duty service he had numerous accolades and a clean record until he engaged in a flirtatious (non-contact) relationship with a student in one of his classes at the Fort Huachuca noncommissioned officer (NCO) Academy. He did not receive any nonjudicial punishment nor did he lose his security clearance; however, he was processed for discharge under QMP. He was never afforded the opportunity for a personal appearance and he was not offered legal assistance in the administrative process. c. Following his administrative separation from active duty, he consulted attorney P.M who has since had his service and military records reviewed and the attorney is submitting his petition. 2. Counsel states, in part: a. The applicant first entered active duty in the Army on 11 January 2005, and served two combat tours in Iraq for a total of twenty-seven months. The applicant earned multiple awards and decorations during his active duty service. b. In July of 2011, the applicant was diagnosed with mental illness following the death of his infant daughter. In June 2011, he had to make the decision on removal of life support from his five-month-old daughter, as she could no longer live with the complications due to her premature delivery. He still lives with the dreams and nightmares from that day and that decision. That horrifying experience only exacerbated the mental trauma he experienced in Iraq analyzing casualty images of U.S. and local national deaths as an all source intelligence analyst during his 2010 tour in Iraq. To this day, he suffers flashbacks of those images. These were things he did not discuss with his military supervisors or medical personnel for fear of losing his security clearance and job. c. In September 2011, the applicant was given a referral to R.J., LCSW in Killen, Texas. On 15 February 2012, that mental health consult continued, it was documented the applicant’s record on 27 February 2012, and that referral was reopened on 18 July 12. Military medical records continue to show depression in July 2012, but the consultations with Mr. R.J. ended soon thereafter with no clear explanation for that cessation, since the applicant continued to suffer mental health impairment. The applicant’s medical record continued to show evidence of mental health impairment in August 2012, but there are no records of continued mental health treatment except for an entry in June 2015 that affirms the applicant was diagnosed with post-traumatic stress disorder (PTSD). This failure to provide continuing mental health treatment and assessment may have been due, in part, to the applicant’s transfer from Fort Hood, Texas to Fort Huachuca, Arizona in April 2013. There is no evidence of follow-on mental health care in the applicant’s military medical record, other than the aforementioned June 2015 entry. d. On 8 December 2015, the applicant’s commander notified him that he was being considered for involuntary separation from the U.S. Army, after almost twelve years of active duty service, due to an incident of flirtation with a student at the Advanced Leaders Course, a program at which the applicant served as an instructor at Fort Huachuca. The applicant delivered an appeal of that QMP action containing nine letters of enthusiastic support for his retention from supervisors ranging in rank from Major to Staff Sergeant. Unfortunately, the applicant was discharged from the Army on 1 November 2016, and it appears his chain of command did not ensure his medical conditions, particularly his continuing diagnosis for PTSD, was considered in the disability evaluation system. 2. The applicant served in Iraq on the following occasions: * 14 February 2010 through 8 January 2011 * 29 November 2006 through 12 February 2008 3. A DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), covering the period 7 March 2014 through 2 March 2015, shows the applicant: * received a “NO” for Honor and Integrity * received a rating of “Needs Improvement” from his Rater for Leadership and Responsibility & Accountably * rater’s comments shows the applicant compromised the integrity of supervisory authority by engaging in an inappropriate relationship with a Solder of a different grade * rater’s comments also show he did not hold himself accountable to Standards of Conduct and Army Values * Overall Performance and Potential was rated as “Marginal” 4. On 8 December 2015, the applicant was notified of the potential for Denial of Continued Active Duty Service under QMP. He was informed a NCOER, dated 2 March 2015 lead to the initiation of this process. 5. On 5 February 2016, in response to the QMP notification the applicant requested to be retained. He stated, in part, he took responsibility for his actions. He apologized and stated he was ashamed of his behavior. The applicant also provided multiple letters of support. 6. After being notified he had been denied continued service under QMP, the applicant chose not to submit an appeal. He acknowledged he would be involuntarily discharged on 1 November 2016, without entitlement to a hearing by a local separation board. 7. His available service records do not show: * he was issued a permanent physical profile * he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 8. His DD Form 214 shows he was honorably discharged from the Army on 1 November 2016, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, due to non-retention on active duty after 11 years, 9 months, and 21 days of net active service this period. 9. On 18 April 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The ARBA medical advisor states: a. A review of his available medical records indicates that he was diagnosed with the following Behavioral Health conditions while on active duty: Adjustment Disorder Grief Reaction; Adjustment Disorder with Depressed Mood; Mental Disorder Not Otherwise Specified; Nicotine Dependence; Partner Relational Problem; Psychiatric Diagnosis or Condition Deferred on Axis I. There is no documentation in his medical records of a diagnosis of PTSD. The only medical documentation regarding PTSD is found in the applicant’s 16 June 2015 Periodic Health Assessment Note which states applicant’s PCL (PTSD Checklist Score) was 50 (scores above 50 indicate the need for more comprehensive PTSD assessment); during the same visit, his 4 Question PTSD screen score was 0/4 (negative for PTSD). Of note, in his 27 Feb 2012 Discharge Planning appointment, the applicant denied symptoms of hypervigilance, nightmares, flashbacks (all symptoms of PTSD). He reported to his discharge planner that that the death of his baby was more traumatic than his tours of duty in Iraq. b. It is important to realize that a diagnosis of a mental or behavioral health condition post-service and the subsequent award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service and affects the individual’s civilian employability. The VA evaluates a member throughout his lifetime, adjusting the percentage of disability based on that agency’s examinations and findings. c. In conclusion, after considering all the available medical documentation, there is insufficient evidence to warrant a referral of the applicant’s record to IDES (Integrated Disability Evaluation System) for consideration of military medical disability/retirement. A copy of the complete medical advisory was provided to the Board for their review and consideration. 10. On 14 June 2019, in response to the medical advisory the applicant’s counsel submits the following statement: a. He asks the Board to decline to follow the medical advisor's recommendation because the recommendation ignored a key part of the evidence from the applicant’s medical record in support of his application. The medical advisor stated the evidence provided in the application did not support the request for an evaluation in the DES for PTSD incident to military service when, in fact, they did provide you such evidence. They ask the Board to reconsider the evidence submitted. b. A report by A.S., RN Case Manager at Adult Psychiatry, Fort Hood, Texas, states the applicant had served in combat in Iraq from November 2006 to February 2008 and from February 2010 to January 2011. She adds the applicant found the death of his infant daughter even more traumatic than what he experienced in combat, since it was the applicant who had to make the decision to terminate life sustaining medical care for his young child. As an RN, A.S. did not make any mental health diagnoses. c. A report by captain (CPT) (Dr.) N.S., MC DO., the board-certified physician serving as a flight surgeon at Fort Huachuca, notes the applicant’s PCL (PTSD Checklist Score) is 51 (not 50, as stated by your medical advisor), which is significant since, as the medical advisor admits in the report, this indicates the need for a more comprehensive PTSD assessment. Apparently, Dr. S intended to have a mental health evaluation done, as she stated "Discussed with patient that his PCL score is 51 which put him at moderate symptoms for PTSD and that he needs BN evaluation. Pt states that he is comfortable with seeing psychologist or psychiatrist but with counselors for evaluation. (sic)" d. The applicant’s medical records reflect he was neither evaluated for PTSD, pursuant to Dr. S's consultation request, nor was he considered for medical separation or retirement in the DES. He knows the Board is familiar with criticism that the US Army has received for its failure to properly diagnose, treat, and process Soldiers with PTSD and the indications of PTSD, and he hopes the promises that the Army has made to do better in this area will be kept by the Board by granting this application. They ask the Board to correct this error and restore the applicant's ability to undergo evaluation by the DES, including consideration by a physical evaluation board for medical retirement. He further ask that the applicant receive all pay and allowances that would have properly paid to him during this process, and that this matter be referred to the United States Army Physical Disability Agency for proper consideration in the DES. He also requests a personal appearance before the board. 11. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 4 provides for discharge or release from active duty upon termination of enlistment and other periods of active duty or active duty for training. Soldiers who are precluded from retention for any reason will not be retained beyond the last day of the month in with their expiration term of service falls, or if on indefinite status, they will not be retained beyond the last day of the month in which their retention control point falls. A Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the Soldier is in an entry-level status and service is uncharacterized. b. Paragraph 16-4, pertains to non-retention on active duty. Soldiers denied or ineligible for continued active duty service may be separated upon request and their service will be characterized as honorable. 12. 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. a. 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. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 13. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities. 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. a. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). b. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. 15. Title 38, U.S. Code, 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 an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. 16. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 17. Although counsel requested to personally appear before the Board, there is sufficient evidence available for fair and impartial consideration of his case without such an appearance BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and response from the applicant. The Board considered the applicant’s statement, his record of service, his service in Iraq, the negative evaluation in his record and the reason for his separation. The Board considered the medical documents he provided, the review and conclusions of the medical advising official and the response from the applicant (counsel). The Board found insufficient evidence that the applicant had a condition or conditions that affected the applicant’s ability to perform the duties of his MOS and grade, or evidence that he failed to meet medical retention standards. The Board found no evidence of post- service medical conditions. The Board concurred with the advisory opinion and found insufficient evidence to warrant a referral of the applicant’s record to IDES (Integrated Disability Evaluation System) for consideration of military medical disability/retirement. Based on a preponderance of evidence, the Board determined there was not support for the applicant’s request and that the reason for his separation was not in error or unjust. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 4 provides for discharge or release from active duty upon termination of enlistment and other periods of active duty or active duty for training. Soldiers who are precluded from retention for any reason will not be retained beyond the last day of the month in with their expiration term of service falls, or if on indefinite status, they will not be retained beyond the last day of the month in which their retention control point falls. A Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the Soldier is in an entry-level status and service is uncharacterized. b. Paragraph 16-4, pertains to non-retention on active duty. Soldiers denied or ineligible for continued active duty service may be separated upon request and their service will be characterized as honorable. 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. a. 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. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 3. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities. 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. a. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). b. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. 5. Title 38, U.S. Code, 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 an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. ABCMR Record of Proceedings (cont) AR20190002705 2 1