IN THE CASE OF: BOARD DATE: 12 March 2021 DOCKET NUMBER: AR20200002944 APPLICANT REQUESTS: physical disability retirement and personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter * DA Form 4856 (Developmental Counseling Form), dated 15 September 2008 * DA Form 4856, dated 31 July 2009 * DA Form 31 (Request for Leave), dated 13 October 2010 * Record of Foreign Travel and Security Briefing, dated 13 October 2010 * DD Form 214 (Certificate of Release or Discharge from Active Duty), covering period ending 14 November 2010 * Central Counseling Center examination, dated 17 May 2017 * Department of Veterans Affairs (VA) Form 21-0960P-3 (Review Post-Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire), dated 22 May 2017 * self-authored narrative of stressful incidents, supporting VA Form 21-0960P-3 * VA Rating Decision, dated 27 February 2019 * two VA letters, dated 14 March 2019 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code, section 1552(b); however, the 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: a. He would like his record corrected to show medical retirement. His discharge from the Army was inequitable. Although he received an honorable discharge, he had an undiagnosed mental illness that he now knows is a disability. He served in the Army for 3 years and 4 months, from 2007 through 2010 and was deployed to Iraq from September 2008 through September 2009. As an Infantry Soldier in a combat zone, he experienced many traumatic events and was awarded the Combat Infantryman Badge (CIB). b. There were some warning signs that something was wrong with him, but he didn’t receive the medical care of a proper mental evaluation for his condition while he was an active duty Soldier. He knew that something was wrong and that he didn’t quite come back the same from Iraq. He didn’t know what to do about it except avoid things that caused him stress. Even though he had plans to continue his military career until retirement, he decided not to reenlist because he thought that if he did, he might lose what was left of his sanity in the upcoming deployment to Afghanistan. c. Since 2009, the Army has improved their awareness and evaluation of Soldiers for PTSD after deployments. He believes under current regulations, his condition would have been discovered and he would have received a disability retirement under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). When he was discharged, there were many physical evaluations, but no mental evaluations. There seemed to be a stigma regarding mental health and seeking mental health treatment was discouraged. d. An October 2019 U.S. Army Behavioral Health Team Report # S.0065762.3-19 was published regarding the suicide problem at Fort Wainwright, AK. He was also stationed there before and after his deployment. The report identified stigma and limited resources as a contributing factor to the mental health problem at that base and recommends encouraging early access to resources. If these recommendations had been implemented, he believes it is possible that his condition would have been discovered before he was discharged. e. His unit was C Company, 3rd Battalion, 21st Infantry Regiment, 25th Infantry Division. You may know this unit by reputation because of a scandal that made the national news. C____ was a Soldier in his unit who committed suicide in a guard tower in Afghanistan. Complaints of hazing prompted an investigation. In 2012, eight Soldiers from his unit were charged with crimes including assault, dereliction of duty, involuntary manslaughter, maltreatment, making false statements, negligent homicide, and reckless endangerment. One of those charged Soldiers was Staff Sergeant (SSG) D____, who was his platoon sergeant in Iraq. He was convicted of dereliction of duty because of the disrespect, hazing, and abuse he allowed to happen to C____. When he deployed to Iraq with SSG D____, the hazing was already happening. There were multiple times where SSG D____ offered to remove his rank patch and have a fist fight with him, “man to man.” He knew if he were to seek mental health help, it would probably make things worse for him rather than better because he wouldn’t have the support of his leadership. The C____ scandal changed the entire Army culture and he’s sure that if he were a Soldier today that things would have been different. f. It wasn’t until May 2017 that he was diagnosed with unspecified anxiety disorder with symptoms of PTSD and depression by Dr. T____. Dr. T____ concluded that his anxiety disorder was more likely than not secondary to his traumatic experiences serving with the 25th Infantry Division in Iraq. He had been struggling mentally and seeing various counselors, psychologists, and psychotherapists for years before then, but it took a while before he was at the point where he could deal with things enough to talk about them. g. What he is seeking is for the Board to change his honorable discharge to medical retirement. This is important to him because he wants a blue DD Form 2 (United States Uniformed Services Identification (ID) Card) given to retirees. This ID card will authorize him to fly with the U.S. Air Force, Air Mobility Command, Space A flights to outside of the continental U.S. (OCONUS) locations. The reason this is so important to him is because after his discharge, he traveled to Japan on a Space A flight and stayed there for 4 years attending Temple University at the Japan campus, using his GI Bill. He has more friends and colleagues in Japan that he does here in the U.S. because of that. It would be nice if he could visit them and stay connected as long as there are still bases in Japan. This won’t change the past for him, but it can help him moving forward. 3. The applicant enlisted in the Regular Army on 26 July 2007 and was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman). 4. The applicant provided a DA Form 4856, which shows he was counseled by his platoon sergeant, SSG D____ on 15 September 2008, to discuss expectations for their deployment to Iraq. It shows: a. The applicant was advised the operational tempo was going to increase and the tasks asked of him would be greater. He was expected to perform above standard, be prepared to do jobs not normally his due to the personnel in the platoon, take greater care of his equipment and improve physical fitness. b. He was advised of the strain a deployment puts on an individual and that if he found himself depressed to talk to his team leaders and if they couldn’t help him they would seek guidance from trained people who could help. If he needed help he was advised to ask for it. 5. The applicant deployed to Iraq from 20 September 2008 through 20 September 2009. 6. He provided a second DA Form 4856, which shows he was counseled by his vehicle commander, Sergeant (SGT) W____ on 31 July 2009 to discuss his monthly performance. It shows: a. His overall job performance for the month of July was outstanding. On 3 July they were ambushed, taking small arms fire from the enemy. The applicant positively identified a target and immediately returned fire. His quick reactions made the enemy realize they weren’t going to run from them and soon after the fire ceased. He did an outstanding job and his vehicle commander was very proud of him. He did what he was trained to do and did not hesitate at all. b. While traveling on Route Marie on the morning of 27 July, their platoon was hit by an improvised explosive device (IED). Once again he kept calm and right away said that they needed to get back there and make sure their guys were alright. He cared more about his brothers’ safety than his own, which is great leadership quality. 7. The applicant provided a DA Form 31, dated 13 October 2010, which shows he requested and was granted 16 days of ordinary leave from 30 October 2010 through 14 November 2010 from Fort Wainwright, AK to an Army Postal Office (APO) leave address in Tokyo, Japan. He also provided a Record of Foreign Travel and Security Briefing form which shows he received an area threat, physical threat, terrorism threat briefing pertaining to his travel. 8. The applicant’s DD Form 214 shows he was honorably released from active duty on 14 November 2010, after 3 years, 3 months, and 19 days of net active duty, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, due to completion of required service, and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). Among his awards, badges, and decorations his DD Form 214 shows he was awarded the CIB. 9. His available service records from this period do not show: * he was issued a permanent physical profile rating * 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 10. The applicant’s records contain a DD Form 2807-2 (Medical Prescreen of Medical History Report), dated 28 October 2014, prepared for the purpose of Army National Guard (ARNG) enlistment. It shows the applicant annotated “no” he did not currently have or ever have every listed condition on the form. 11. A DD Form 2807-1 (Report of Medical History) dated 31 October 2014, shows the applicant underwent a medical examination on the date of the form for the purpose of ARNG enlistment. It shows: a. The applicant annotated “no” he did not currently have or ever have every listed condition on the form, to include those in item 17 pertaining to nervous trouble of any sort, depression nor excessive worry, and the like. b. The examiner’s notes include reference to the applicant’s honorable discharge with reentry (RE) code “1” and no VA disabilities. 12. A DD Form 2808 (Report of Medical Examination), dated 31 October 2014, shows the applicant underwent a medical examination on the date of the form for the purpose of ARNG enlistment. The examination found no abnormalities, the applicant was qualified for service, and his physical profile rating was “1” in all categories. 13. The applicant’s National Guard Bureau Form 22 (National Guard Report of Separation and Record of Service) shows he enlisted in the ARNG on 14 November 2014 and was honorably discharged on 13 November 2015, after 1 year of net service this period, due to his expiration of term of service (ETS). 14. Joint Force Headquarters- Minnesota, Office of the Adjutant General Orders 265-1003, dated 22 September 2015, likewise show the applicant was honorably discharged from the ARNG effective 13 November 2015 due to his ETS with an RE code of “1.” 15. Central Counseling Center examination, dated 17 May 2017 shows: a. The applicant was diagnosed with: * unspecified anxiety disorder with symptoms of PTSD and depression * tinnitus and right knee patellofemoral pain * moderate to extremely severe difficulties due to his health and mental health conditions; he reported difficulties standing for long periods, taking care of household responsibilities, learning new tasks, concentrating for more than 10 minutes, joining in community activities, and maintaining friendship b. In summary, the applicant is an Army Iraq war combat veteran who clearly appears to meet the criteria for a diagnosis of unspecified anxiety disorder with symptoms of PTSD and depression. He also reported having occasional panic attacks, chronic sleep related problems, occasional distressing intrusive thoughts, avoidance behaviors, negative alterations in cognitions and increased symptoms of arousal. It was the opinion of the licensed psychologist, that the applicant’s unspecified anxiety disorder was more likely than not secondary to his traumatic experiences while serving with the 25th Infantry Division in Iraq and also shortly after his discharge learning that multiple friends of his were killed in Afghanistan and that he should have been with him. His prognosis was guarded. He appeared able to handle benefits in his own best interest. He should continue taking his prescribed medications and needs to seriously reduce his daily alcohol use. 16. A VA Form 21-0960P-3, dated 22 May 2017, shows the applicant indicated on the PTSD disability benefits questionnaire that he had been diagnosed with unspecified anxiety disorder with symptoms of PTSD and depression. He also indicated he experienced, witness, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others. He also annotated all of symptoms he experienced related to his diagnosis, including depressed mood, anxiety, panic attacks, chronic sleep impairment, impaired judgment, and survivor guilt. 17. As supporting evidence with his VA Form 21-0960P-3 to the VA, the applicant provided a 5-typed page self-authored narrative of three stressful incidents he experienced during his deployment to Iraq, which has been provided in full to the Board for their review. The first stressful incident details their platoon being ambushed while moving in a convoy in August 2009. The second stressful incident details an IED attack while on night patrol in a convoy of vehicles on 16 April 2009. The third stressful incident detailed a suicide bomber attack at a restaurant on 23 April 2009, where 50 Iranian civilians were killed, and their platoon was tasked with providing subsequent security and assistance in evacuating the wounded. 18. A VA Rating Decision, dated 27 February 2019 shows the applicant was granted a 60 percent service-connected disability rating effective 29 November 2016 and a 100 percent service-connected disability rating effective 8 November 2018, for the following conditions: * other unspecified anxiety disorder with symptoms of PTSD and depression, 50 percent from 29 November 2016 and 100 percent from 8 November 2018 * L5-S1 left foraminal narrowing, 20 percent from 29 November 2016 * right knee patellofemoral pain syndrome, 10 percent from 29 November 2016 * tinnitus, 10 percent from 29 November 2016 19. Two VA letters, both dated 14 March 2019, show the applicant has a service- connected disability rating of 100 percent and the effective date of his last change to his current award was 27 February 2019. 20. The Army rates only conditions determined to be physically unfitting at the time of discharge, which 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 may compensate the individual for loss of civilian employability. 21. 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 VA rating does not establish an error or injustice on the part of the Army. 22. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. 23. Based on the applicant’s condition the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See ?MEDICAL REVIEW? section. MEDICAL REVIEW: 1. The ARBA Medical Advisor reviewed the supporting documents and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant is requesting medical retirement. He stated that he was diagnosed with Unspecified Anxiety Disorder with symptoms of PTSD and Depression in 2017. He believes that he should have been diagnosed while in active service and had this happened, he would have received medical retirement. 2. JLV search showed that the applicant is 100% total combined serviced connected by the VA for the following disabilities: Anxiety Disorder (100%); Lumbosacral or Cervical Strain (10%); Tinnitus (10%); and Limited Flexion of Knee (10%). The applicant submitted a 27 February 2019 VA Rating Decision letter that certified that he service connected disability at 60% from 29 November 2016 and 100% from 8 November 2018. 3. In the 13 August 2009 and 16 September 2009 PDHA (for the same Iraq deployment), he inconsistently endorsed behavioral health (BH) symptoms. The traumatic brain injury and alcohol risk assessment screens were negative. The provider identified that the applicant had minor social/family conflicts that were already under care, and the applicant declined to be seen by BH services. In September 2009, on the day he got back from Iraq, he was arrested for reckless driving and evading police (charges were dropped). In the 4 February 2010 PDHRA (reassessment), he selected the option that his emotional problems were making it ‘somewhat difficult’ to ‘do his work, take care of things at home, or get along with other people’. He also endorsed ‘increased irritability’. He was referred to see BH. In follow up, the depression screen (PHQ9) showed ‘mild’ Depression symptoms. Based on 2 February 2010 screening results he did not meet threshold for Anxiety, PTSD or Panic diagnoses and his anger score was 1/56 (negative). He declined a BH appointment at that time. He was released from active service several months later in November 2010. Afterwards he went to study abroad at Temple University in Japan, earning his Bachelor of Arts in political science in 2014 while he worked part-time. He moved back to the U.S. because he couldn’t find a job and was initially homeless. He sought help from the VA for housing assistance until he began working as a security guard. He also met briefly with mental health services but didn’t want medication or a diagnosis because he thought it would prevent him from becoming a policeman. During the 31 October 2014 Report of Medical History (for ARNG enlistment); the applicant endorsed that he was in good health and specifically denied psychiatric symptoms. On 23 October 2015 near the time of ETS, though he reported utilizing deep breathing and meditation and found it very effective in coping with anxiety, he was now interested in starting therapy at the VA and restarting medication. He began individual Cognitive Behavior Therapy sessions. He had finished the police academy but decided to work full time for a company doing technical support for an electrical device. 4. After discharge, at the time of the 2 February 2017 VA C&P Initial PTSD DBQ, he was assessed to not meet full criteria for PTSD per the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (DSM-5). He told the provider that while he was in Japan he developed anxiety (treated with medication) and nervous twitching, in the wake of a tsunami, an earthquake, and a nuclear disaster. In addition, he found out that his friend was killed in Afghanistan. He said that he had some guilt because he was in the Individual Ready Reserve and was called back “but I was in a foreign country and they couldn't make me”. He was diagnosed with Other Unspecified Anxiety disorder and Alcohol use disorder; which caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress (10% disability level). In the 17 May 2017 Central Counseling Center note, PTSD DSM-5 criteria ‘A’ combat stressors were identified. However, the applicant did not meet full criteria for PTSD, he was diagnosed with Unspecified Anxiety Disorder with symptoms of PTSD and Depression. The 22 May 2017 Review PTSD DBQ showed GAF 57 (moderate symptoms) and occupational and social impairment with reduced reliability and productivity (50% disability level). 5. Records showed that the applicant was not always forthcoming with his BH symptoms which consequently presented a diagnostic challenge. However, based on the impact of the condition on his performance, and lack of the need for profiling, or placement in a protected work environment due to BH symptoms; at the time of release from active duty in 2010, the applicant did not have any conditions that failed medial retention standards in accordance with AR 40-501 (Standards of Medical Fitness), chapter 3. At that time, based on reported BH symptoms, he was diagnosed with Mild Depression. At the time of his ETS in 2015, he was diagnosed with an Anxiety Disorder that also did not fail medical retention standards. There was a completed DD Form 2808 in October 2014, but not at ETS. He did have a preventive medicine focused exam completed at the Minneapolis VA facility (23 October 2015), during which no significant ongoing abnormalities were noted. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board noted that to be retired for disability, a Soldier must have unfitting conditions that, separately or combined, are rated at 30% unfitting or higher. In this case, the Board concurred with the ARBA Medical Advisor's conclusion that at the time of the applicant's release from active duty in 2010, he had no BH conditions that did not meet retention standards, and therefore there was no basis for referring him for disability evaluation. Based on a preponderance of evidence, the Board determined the applicant's release from active duty in 2010 by reason of ETS was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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 ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel. Chapter 4 pertains to separation for expiration of service obligation and states a Soldier will be honorably separated upon expiration of enlistment or fulfillment of service obligation. 3. 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. 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). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, 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. b. The disability evaluation assessment process involves two distinct stages: the MEB and 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 either are 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 upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a 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 or 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. 4. 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. 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. 5. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. Title 38 U.S. Code 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. Title 38 U.S. Code 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 8. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002944 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1