IN THE CASE OF: BOARD DATE: 6 October 2020 DOCKET NUMBER: AR20190003049 APPLICANT REQUESTS: in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 4 September 2016 to show he was medically retired with a 50% disability rating for post-traumatic stress disorder (PTSD) in lieu of receiving a physical disability discharge with severance pay. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * VA Form 21-4138 (Department of Veterans Affairs - Statement in Support of Claim), dated 17 November 2015 * Pages 2 and 3 of an unidentified document (assumed to be a VA disability decision document) * Three medical documents * DA Form 4700 (Medical Record - Supplemental Medical Data), dated 11 March 2017 with MEDDAC Form 517 (Medication Reconciliation Form) * A letter from the Alexandria VA Health Care System, Alexandria, LA, dated 17 May 2017 with four auxiliary medical record forms FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he has an inability to function socially and at work with a lack of reliability and productivity. He has mood disturbances, severe depression, anxiety, chronic difficulty sleeping, mild memory loss, and suspiciousness. He has had suicidal ideations and numerous counseling sessions. He is currently taking medication for all these issues and the medication does not work. He struggles every day. 3. The applicant enlisted in the Regular Army on 13 June 2002. Subsequently, he was honorably discharged on 30 November 2011 to accept a commission or warrant in the Army. The DD Form 214 he was issued shows he completed 9 years, 5 months, and 18 days of net active service and served in Operation Iraqi Freedom on four separate occasions during the time frame 16 November 2004 to 26 May 2011. 4. The applicant was appointed as a warrant officer one on 1 December 2011 in the area of concentration of 915A (Automotive Maintenance Warrant Officer) after completing rhw Warrant Officer Candidate Course. Subsequently, he was promoted to the rank of chief warrant officer two on 1 December 2013. 5. A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows the applicant was recommended by a medical evaluation board (MEB) for a PEB. The PEB was convened on 19 May 2016 at Fort Sam Houston, TX to consider his suitability for further service. a. The PEB determined the applicant had the following two conditions that deemed him to be medically unfit for further service: (1) right knee chondromalacia, osteoarthritis patellofemoral pain syndrome, meniscal tear, tendonitis/tendinosis and Osgood Schlatter and (2) left knee chondromalacia, osteoarthritis patellofemoral pain syndrome, meniscal tear, tendonitis/tendinosis and Osgood Schlatter. The onset of these conditions were reported to occur in 2007 after participating in a run during physical fitness training while deployed to Iraq. b. The board recommended that he be separated with severance pay and a disability rating of 0 percent. The case was adjudicated as part of the Integrated Disability Evaluation System (IDES) with the VA. c. The PEB further noted a number of other medical conditions that were not considered unfitting and met retention standards, to include adjustment disorder, major depressive disorder, and anxiety disorder - not otherwise specified. d. The PEB further explained to the applicant that because his disability rating was less than 30 percent and because he had less than 20 years of service, it required separation from the service with disability severance pay per Title 10, U.S. Code, section 1208. e. The applicant concurred with the findings, waived a formal hearing of his case, did not elect a reconsideration of his VA ratings, and signed the form on 2 June 2016. The findings were approved on behalf of the Secretary of the Army on 7 June 2016. 6. The applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability with severance pay, combat -related (enhanced). His DD Form 214 confirms he completed 4 years, 9 months, and 4 days of net active service and received $136,105.20 in disability severance pay in conjunction with his discharge. 7. The applicant provides: a. VA Form 21-4138, dated 17 November 2015 that shows he would like a number of medical conditions claimed on his VA/DOD joint disability evaluation of which the medical condition of PTSD is highlighted. b. Pages 2 and 3 of an unidentified document (assumed to be a VA disability decision document), wherein he highlights the issue/contention of "adjustment disorder with depressed mood (claimed as PTSD))." The page shows he was assigned a disability rating percentage of "0" effective 5 September 2016. c. Three medical documents that show the applicant's prescribed medications and patient appointments, wherein he was given medication for anxiety and depression for PTSD and had appointments with the social work and psychiatry clinics. d. DA Form 4700 dated 11 March 2017 that shows the applicant was discharged from the emergency room at Bayne-Jones Army Community Hospital, Fort Polk, LA, after being seen for suicidal ideations and insomnia. It also includes MEDDAC Form 517 that shows the medication he is taking. e. A letter from the Alexandria VA Health Care System, Alexandria, LA, dated 17 May 2017 with four auxiliary medical record forms that shows the applicant was admitted to the Alexandria VA Hospital on 17 April 2017 with a diagnosis of PTSD and discharged on 17 May 2017. 8. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 9. 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. 10. Title 10, U.S. Code, section 1201 (10 USC 1201), provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent. Title 10, U.S. Code, section 1203 (10 USC 1203), provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated less than 30 percent. MEDICAL REVIEW: 1. The ARBA Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: 2. Documentation does not support a psychiatric condition failed retention standards at the time of separation. Rather, at the time of separation, treating providers, the MEB evaluators, and VA evaluators determined the applicant did not have PTSD and any conditions present met medical retention standards. A review of personnel records does not reflect impairment related to psychiatric conditions or refute the abundance of evaluations and documents finding the applicant fit. Accordingly, a referral to the Disability Evaluation System for a psychiatric condition is not recommended at this time. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the available military service records do not reflect any impairment in the applicant's ability to perform his military duties due to a psychiatric condition. The Board found insufficient evidence to support a conclusion that the applicant should have received a disability rating for any additional conditions prior to his discharge. The Board determined the applicant's discharge for disability with severance pay was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, section 1201 (10 USC 1201), provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent. 3. Title 10, U.S. Code, section 1203 (10 USC 1203), provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated less than 30 percent. 4. Title 38, U.S. Code, sections 1110 (10 USC 1110) and 1131 (10 USC 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 that disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have 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. 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. However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army Physical Disability Evaluation System (PDES). 5. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or 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. 6. 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 or her office, grade, rank, or rating. It provides that an MEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. 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 service. a. Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability. It states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. b. Paragraph 3-5 contains guidance on rating disabilities. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. Any nonratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable. 7. Directive-Type Memorandum (DTM) 11-015 – Integrated Disability Evaluation, dated 19 December 2011, establishes policy, assigns responsibilities, and prescribes procedures for the IDES, which is superseding the legacy DES. It specifies all newly initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. Under the IDES the PEB applies the VA provided ratings to the service member’s unfitting conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190003049 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1