IN THE CASE OF: BOARD DATE: 16 September 2021 DOCKET NUMBER: AR20210008558 APPLICANT REQUESTS: a medical retirement and placement on the permanent disability retirement list (PDRL). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement, dated 14 September 2020 * Upstate Warrior Solution (UWS) President Letter, dated 12 October 2020 * Enlisted Record Brief (ERB) * Two DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) * Notification of Separation, dated 22 February 2005 * Initiation of Separation, dated 22 February 2005 * DA Form 3822-R (Report of Mental Status Evaluation) * DA Form 4856 (Developmental Counseling), dated 4 March 2005 * Letter of Intent to Separate, dated 4 March 2005 * DA Form 2807-1 (Report of Medical History) * DA Form 2808 (Report of Medical Examination) * Separation Authority Approval, dated 31 March 2005 * DA Form 4856, dated 5 April 2005 * Legal Review, dated 7 April 2005 * Orders 098-0257, dated 8 April 2005 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Medical Records (58 pages) FACTS: 1. The applicant did not file within the three-year time frame 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 is requesting a medical retirement and subsequent placement on the PDRL for injuries he sustained in combat. He believes he should have been given an opportunity for a medical evaluation board (MEB) followed by a physical evaluation board (PEB). He suffers from post-traumatic stress disorder (PTSD) as a result of his time in combat and was not properly triaged during his treatment prior to discharge. He was placed on several periods of light duty prior to his separation, but he was never properly placed on limited duty and in the MEB/PEB process. a. He was the oldest of five children, worked on a strawberry farm, volunteered at the State Fair, and served his community prior to joining the Army. He excelled through basic training, airborne school, the ranger indoctrination program, and graduated from Ranger School on September 11th, the day that changed the world. He deployed to Bagram, Afghanistan on 4 March 2002 and three of his closest comrades were killed in The Battle of Takur Ghar (Roberts Ridge). He heard screams over the radio and a mission which turned into an ambush, where lots of men lost their lives. Post battle, they were suffering mentally and morale was low. He believes that is where he began suffering from PTSD. b. The applicant provides additional details of incidents where they were attacked, ambushed, and at one point he was the personal victim of an attack where three Iraqis shot at him and barely missed him. He began to feel as if he would eventually not make it. They conducted numerous operations and he knew over 15 Soldiers that died in various ways. Upon his return to U.S. soil, he knew he was not the same person. He eventually broke up with his fiancée and considered suicide. He began to drink heavily and struggled with suicidal thoughts. He shared with close friends; however, refused to inform his leadership because he wanted to deploy again with Special Forces (SF). c. He was pulled over for drinking and driving while attending training for Special Forces Assessment and Selection (SFAS). He was never disciplined nor court- martialed; however, he was removed from training and informed he could not reapply for one year. Shortly after his return to his unit, someone informed his leadership about his suicidal ideations and he was placed on a profile with limited duty, and suspended from deployment and training, to include physical training (PT). He felt like a failure because he let down his comrades and his country. d. The applicant was informed by medical personnel that he had severe/chronic PTSD, he was entitled to medical retirement, and the MEB/PEB process could take between 12-18 months. A high ranking medical official then shared with him that they could offer him a honorable discharge and early release from the military. He was confused about his options, the terminology, and was not in the right frame of mind. He agreed to the separation and was told he could take up his medical retirement with the Department of Veterans Affairs (VA). He felt he was disrespected and treated dishonorably during his separation. The applicant provides additional details of events during his separation. He concludes by stating he never acquired an understanding of the differences between a medical retirement and disability until approximately 15 years after his service. His PTSD led him to substance abuse, inability to be intimate, reclusiveness, and almost homelessness. He would like to be considered for medical retirement and feels the way the Army treated him was an injustice. 3. The applicant provides: a. A letter from the President of UWS, dated 12 October 2020, which states the applicant is a client and a volunteer with Veteran organizations in the community. He was providing the letter in support of the applicant’s request for a medical retirement. The letter offers some examples of traumatic events the applicant was exposed to, as outlined in the applicant’s self-authored statement. The letter's author noted in his professional opinion that the applicant would have likely been assigned to the Disability Evaluation System process if he were to undergo the same evaluation in the present day operation environment. c. A memorandum, dated 7 April 2005, indicated a legal review was conducted on the applicant’s separation packet and was found legally sufficient. d. Medical records (58 pages) for treatment received during his term of service from 1999 to 2005. 4. The applicant enlisted in the Regular Army on 23 July 1999. 5. His DD Form 214 lists two periods of deployment: * Afghanistan from 29 December 2001 to 6 April 2002 * Iraq from 5 February 2003 to 23 January 2004 6. The service record contained three NCOERs for the following periods: * March 2003 to September 2003 – the applicant was instrumental in gathering intelligence during two long-range surveillance (LRS) missions north of Mosul, Iraq; conducted over 30 combat patrols and 15 convoys through Iraq without incident, among other accomplishments; and he was rated as successful (2) in overall performance and superior (1) in overall potential * October 2003 to June 2004 – the applicant played an instrumental part in the establishment of standard operating procedures (SOP) for over 300 Iraq border police in Northern Iraq; led his team to successfully execute over 80 joint patrols with the Iraqi Border Police among other accomplishments; and he was rated as successful (1) in overall performance and superior (1) in overall potential * July 2004 to February 2005 – comments were a bit scarce on the NCOER; however, he was noted as providing vital expert knowledge and insight during critical field training exercises; he was rated as successful (2) in overall performance and superior (2) in overall potential 7. On 22 February 2005, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 5-17, for other designated physical or mental conditions. He acknowledged receipt of the notification of separation action on the same day. 8. The service record is void of the applicant’s election of rights. 9. On 22 February 2005, the immediate commander initiated separation action against the applicant for other designated physical or mental conditions. The commander indicated that this action was based on the applicant being diagnosed as having severe chronic PTSD and his ability to perform military duties was significantly impaired. 10. On 24 February 2005, a Report of Mental Status Evaluation (DA Form 3822-R) confirmed the applicant was referred because he was being considered for discharge. The physician noted in “Remarks” the applicant was diagnosed with PTSD and was recommended for Chapter 5-17 since efforts at treatment and rehabilitation were not likely to be successful. Additionally, the physician stated: * the applicant’s behavior was aggressive and he was fully alert * he was fully alert and fully oriented * his mood was anxious and had a clear thinking process * normal thought content and good memory * has the mental capacity to understand and participate in the proceedings 11. On 4 March 2005, the applicant received a DA Form 4856 notifying him of the Commander’s intent to separate him from military service under the provisions of AR 635-200. Chapter 5-17. A letter of intent to separate the applicant was also provided to the Physical/Mental Exam section. 12. The record contains a DD Form 2807-1 completed by the applicant on 9 March 2005 for the purpose of separation under Chapter 5-17. The physician noted the applicant was on a couple of medications and annotated the applicant’s PTSD. The applicant listed in Block 29 (Explanation of “Yes” Answers) the following: * asthma, breathing problems * wheezing * weak left eye * right shoulder rotator cuff * lower back pain * flat feet * painful ankles from prior injuries * inserts needed for flat feet 13. A DD Form 2808 (Report of Medical Examination), dated 9 March 2005, indicated the purpose of the examination was for separation. Block 74a (Examinee/Applicant) designated the applicant was qualified for service. Block 77 (Summary of Defects and Diagnosis) listed the applicant’s upper back pain. 14. On 31 March 2005, the separation authority approved the discharge recommendation for immediate separation under the provisions of AR 635-200, Chapter 5-17, for other designated physical or mental conditions. He would be issued an honorable discharge. 15. On 5 April 2005, the applicant received a DA Form 4856 for his inability to perform his duties due to anxiety attacks and depression. 16. Orders 098-0257, dated 8 April 2005, discharged the applicant from active duty with an effective date of 25 April 2005. 17. He was honorably discharged from active duty on 25 April 2005. His DD Form 214 shows he completed 5 years, 9 months, and 3 days of active service with no lost time. He was assigned separation code JFV and the narrative reason for his separation listed as “Physical Condition, Not a Disability.” 18. By regulation (AR 635-200), action will be taken to separate a Soldier for other physical or mental conditions not amounting to disability (AR 635-40) and excluding conditions appropriate for the separation processing under paragraph 5-11 or 5-13 that potentially interferes with assignment to or performance of duty. 19. By regulation (AR 635-40), the Army disability system 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. The regulation 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. 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. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. a. A review of his service and military medical records indicates on 11 August 2004, he reported having panic attack symptoms. He reported his fiancée of 3 years recently left him and he was pulled from a SF class. He was diagnosed with Anxiety Disorder, not otherwise specified, and started on Buspar. He did not return for follow-up treatment. b. On 11 January 2005, his commander requested a command directed behavioral health evaluation (CDBHE). He was set to deploy but was held in the rear detachment due to a recent DUI and had a court date in March 2005. His first sergeant reported he made vague suicidal comments about maybe hurting himself if he has to deploy. On 13 January 2005, the CDBHE was conducted. The applicant reported he was pulled from SF training due to the DUI. He reported that his mother’s home was repossessed during Christmas time and his brother was in jail for grand theft. He had been scheduled to deploy in February before the DUI. The applicant reported having his first panic attack in childhood and had 2 since his deployment. c. On 18 January 2005, he was seen for a medication evaluation. He reported having suicidal thoughts in on 31 December 2004. He reported startle response to certain sounds and worry about his alcoholic father and his mother’s health (cancer 3 times). He was diagnosed with PTSD and prescribed Lexapro and Wellbutrin and scheduled for individual and group therapy. On 19 January 2005, he was evaluated to determine deployability. He reported being kicked out of his Ranger unit due to alcohol use and DUI. His diagnoses were PTSD and Alcohol Abuse. Command referral to Army Substance Use Program was recommended. He was found to be non-deployable pending completion of behavioral health treatment. d. On 24 January 2005, his therapist noted the applicant refused to take prescribed medication to address depressive and anxious symptoms. A treatment note from 31 January 2005, noted continued non-compliance with treatment (medication) and limited engagement in individual therapy. He agreed to participate in a PTSD treatment group. His psychologist noted that treatment outcome was at risk. The provider consulted with the treating psychiatrist as she had concerns if he was not allowed to go to the Ranger Training Battalion he would likely get himself in trouble. e. A treatment note from 2 February 2005 indicates applicant was irritable about having to share combat experiences in group. On 7 and 11 February 2005, he did not show for his group therapy appointments. f. On 24 February 2005, his treating psychologist completed a mental status evaluation documenting his PTSD diagnosis. Based on his diagnosis and non- compliance with treatment, administrative separation under Chapter 5-17 was recommended. g. He was a no-show for his 2 March 2005 group appointment but did report for his individual session. He reported frustration at being in the 82nd Replacement Detachment. He stated that his commander spoke with him about staying in the military but he stated he wants out and feels that is best for him. h. On 9 March 2005, he completed his separation physical and had a temporary profile for upper and lower extremities but had a "1" for psychiatric (no duty limitations). On 9 March 2005, he reported starting his Wellbutrin and that his mood was improving. He reported his main problem was irritability. On 16 Mar 2005, he reported having weird nightmares over the past two weeks. He stated he was avoiding his Ranger friends because he was ashamed of his DUI and the behavior leading up to it. i. On 13 Apr 2005, he was seen for his final session. He reported he was looking for a job and planned to go to college after his discharge. j. A review of JLV indicates the applicant was diagnosed with PTSD and Alcohol Dependence on 2 August 2005. He refused substance abuse treatment and requested individual therapy. On 25 January 2006, he reported that he did not start the Zoloft prescribed in August 2005. He reported attending college and had a 3.7 GPA. He reported continuing to abuse alcohol. The applicant complained he was not receiving therapy but acknowledged he did not go to the Vet Center for counseling as the paperwork from his case manager directed. He declined referrals for substance abuse treatment and PTSD groups but stated he would go to the Vet Center. He did not return for follow-up until 13 September 2006. He stated he found 4 bottles of Zoloft at home but had not been taking it in months. He reported taking Trazadone for sleep. He was going to the Vet Center once per month. He reported working as a manager for a furniture store and as a bouncer. He was also taking 11 semester hours in college. The psychiatrist changed his medication to Celexa. On 27 November 2006, he reported continued excessive alcohol use and depressed symptoms. k. On 13 November 2007, he reported continued depressed mood and an increase in PTSD symptoms. He acknowledged he had problems with alcohol but continued to drink. The applicant reported he had dropped out of college. He did not return for follow- up behavioral health treatment. l. On 26 July 2017, he was evaluated in the traumatic brain injury (TBI) clinic. He reported working on a graduate degree but was having some difficulty with concentration and memory. He was diagnosed with mild cognitive disorder but did not receive any treatment. m. On 24 April 2020, he reported no need of case management or TBI support but requested behavioral health therapy. On 27 April 2020, he was contacted by a psychologist and the applicant indicated he was not interested in treatment at that time. There are no further behavioral health encounters in his record. n. There is documentation to support a behavioral health diagnosis at the time of his discharge. He met retention standards at the time of his discharge. The applicant had only been in treatment from January to April 2005. At the time of his discharge, he was not compliant with his behavioral health treatment recommendations and had not reached the Medical Retention Determination Point. He was evaluated by his psychologist and his psychiatrist and met retention standards. It is acknowledged that on his last NCOER he was rated "success" and "fully capable," which was lower than previous evaluations, but this was the rating period during which he received a DUI and was dropped from SF training. Military disability/medical retirement is not warranted. It is acknowledged that the applicant has a service-connected disability of 50% for 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, the VA will compensate for all disabilities felt to be unsuiting. The DoD does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting. Military medical retirement/disability is not warranted. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that prior to his discharge the applicant did not have any conditions that warranted referring him to the Disability Evaluation System. Based on a preponderance of evidence, the Board determined the applicant's discharge for "physical condition, not a disability" 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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Chapter 5-17 of the regulation states a Soldier may be separated for other physical or mental conditions not amounting to disability (AR 635-40) and excluding conditions appropriate for the separation processing under paragraph 5-11 or 5-13 that potentially interferes with assignment to or performance of duty. Unless the reason for separation requires a specific characterization, a soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status. 3. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 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. 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. 5. 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. 6. 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). The Department of Veterans Affairs Schedule for Rating Disabilities. VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 7. 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. 8. 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. 9. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210008558 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1