IN THE CASE OF:   
BOARD DATE:  19 August 2022 
DOCKET NUMBER: AR20210013862 


APPLICANT REQUESTS:  a change to the narrative for separation to reflect “medical retirement.” 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record)

•Legal coversheet



FACTS: 



















1.Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160011212 on 10 December 2018.2.The applicant states, in effect:•he should have been medically retired due to posttraumatic stress disorder(PTSD)•request to reopen his medical review and ultimately be medically retired•his record should be corrected because it was a clear and unmistakable error•the Army Board failed to consider all of the Veterans Affairs medical documents proving undisputable PTSD3.The applicant provides a legal coversheet from Jones Attorney at Law, dated 3 June 2021, which states, it is of their opinion that the applicant should have been medically retired, due to PTSD.  In support of their opinion, they enclosed an expert report from Dr. ; however, the stated report was not included with the application.4.A review of the applicant’s service record shows:a.On 21 August 2005, he took the Oath of Office as a second lieutenant (2LT) inthe Army National Guard. 



b.NGB Form 22 (National Guard Report of Separation and Record of Service)reflects the applicant was honorably discharged from the Army National Guard of Louisiana and as a Reserve of the Army in accordance with National Guard Regulation (NGR) 635-100, 5a (3), Resignation, with an effective date of 31 March 2011. 



5.MEDICAL REVIEW:

The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS).  The ARBA Medical Advisor made the following findings and recommendations:   

a.The applicant is again applying to the ABCMR requesting, in essence, that he bereferred to the Disability Evaluation System (DES).  He states: 

“I should have been medically retired due to PTSD.  I am requesting that my medical review be reopened and that I be medically retired.   The record should be corrected because it was a clear and unmistakable error that I should have been medically retired, as the Army board failed to consider all of the VA medical documents proving undisputable PTSD.” 





b. The applicant’s Report of Separation and Record of Service (NGB Form 22) shows he commissioned in the Army National Guard on 21 August 2005 and was honorably discharged from the Louisiana Army National Guard (ARNG) on 31 March 2011 under the provisions of paragraph 5a(3) of NGR 635-100, Commissioned Officers Federal Recognition and Related Personnel Actions: Resignation, Conditional in Lieu of Elimination.   c. This request was previously denied in full on 10 December 2018(AR20160011212).  Rather than repeat their findings here, the board is referred to the record of proceedings and medical advisory for that case.  This review will concentrate on the new evidence submitted by the applicant. d. No medical documentation was submitted with the application.  The only documents of significance in the 12 pages are the application itself and a letter from his counsel which states: 
“On behalf of my client, {Applicant}, we hereby submit an Application for Correction of Military Record Under the Provisions of Title 10 U.S. Code, Section 1552.  It is our opinion that Mr. {Applicant} should have been medically retired due to PTSD.  In support of this, we are enclosed an expert report from Dr. .” 

e.The referenced report is not in the supporting documentation.

f.Neither his separation packet nor documentation addressing his resignation in lieuof elimination was submitted with the application nor uploaded into iPERMS.  There is no file in ePEB. 

g.Of note is a 23 February 2011 AHLTA psychology evaluation after which theapplicant was declared fit for duty: 

The soldier underwent additional psychological testing to determine if he had a medically boardable psychiatric condition.  The first set of testing including additional validity testing produced frankly invalid and exaggerated results.  The soldier was advised of the invalid testing and scheduled for this re-look.  

On the date of testing he was administered the PAI (Personality Assessment Inventory).  This protocol is similar to the MMPI in that it measures psychopathology and personality variables.  It has a different set of internal checks for validity and a Likert type response scale instead of the simple T or F on the MMP(2); thus allowing for a certain measurement of nuance in each test question.  

The PAI was also invalid.  The face value of the scores would suggest that the respondent was experiencing an active psychotic episode with overwhelming physiological and psychological symptoms.  The computerized analysis of scores cautions that the person is exaggerating and distorting symptoms.   

DISCUSSION: This is the second failure of this soldier to produce valid testing. The report of symptoms is not trustworthy.  In that a diagnosis of a complex Psychiatric syndrome like PTSD must be made based on the reliable self-report of a person's internal state, such a diagnosis cannot be made in this instance.   

The social evidence for PTSD is also wanting. The soldier tells me that he is actively pursuing a graduate degree but is at the same time reporting that he is so psychiatrically disabled that he cannot put on his uniform and go to work.  This appears to be a contradiction.  He also informs me that there has been a C & P examination.  We are not yet privileged to have examined this.  In the absence of any further investigation, the soldier is found FIT FOR DUTY. 

h.Review of his records in JLV shows he has been awarded multiple VA service-connected disability ratings, including a 100% rating for PTSD.  However, the DES compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service.  The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career.  These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws.      

i.It is the opinion of the Agency Medical Advisor the applicant’s request should bedenied. 

6.NGR 600-100 prescribes policies and procedures governing the appointment,assignment, temporary Federal recognition, Federal recognition, reassignment,transfers between States, branch transfers, area of concentration designation,utilization, branch detail, attachment, and separation of commissioned officers of theArmy National Guard (ARNG)

7.Hagel Memorandum, dated 3 September 2014, states liberal consideration will begiven in petitions for changes in characterization of service to service treatment recordsentries which document one or more symptoms which meet the diagnostic criteria ofPTSD or related conditions.  Special consideration will be given to VA determinationswhich documents PTSD or PTSD related conditions connected to military service.  Incases in which PTSD or PTSD related conditions may be reasonably determined tohave existed at the time of discharge, those conditions will be considered potentialmitigating factors in the misconduct that caused the under other than honorableconditions characterization of service.

8.Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation fordisabilities which were incurred in or aggravated by active military service.  However, anaward of a VA rating does not establish an error or injustice on the part of the Army.

9.Title 38, CFR, Part IV is the VA’s schedule for rating disabilities.  The VA awardsdisability ratings to veterans for service-connected conditions, including those conditionsdetected after discharge.  As a result, the VA, operating under different policies, mayaward a disability rating where the Army did not find the member to be unfit to performhis duties.  Unlike the Army, the VA can evaluate a veteran throughout his or herlifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

10.In reaching its determination, the Board can consider the applicant’s petition andhis service record in accordance with the published equity, injustice, or clemencydetermination guidance.

BOARD DISCUSSION: 

The Board carefully considered the applicants request, supporting documents, evidence in the records, and regulatory guidance. The Board considered the applicant's statement, the medical records, and the review and conclusions of the medical reviewing official. Based upon a preponderance of the evidence, the Board concurred with the medical reviewer’s finding of insufficient evidence the contested medical conditions failed to meet retention standards during his period of service. Therefore, the Board determined referral to DES for consideration of a medical separation is 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 to amend the decision of the ABCMR set forth in Docket Number AR20160011212 on 10 December 2018. 



Microsoft Office Signature Line...
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 forcorrection of military records must be filed within 3 years after discovery of the allegederror or injustice. This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the 3-year statute of limitations if the ABCMR determines itwould be in the interest of justice to do so.

2.National Guard Regulation (NGR) 600-100 prescribes policies and proceduresgoverning the appointment, assignment, temporary Federal recognition, Federalrecognition, reassignment, transfers between States, branch transfers, area ofconcentration designation, utilization, branch detail, attachment, and separation ofcommissioned officers of the Army National Guard (ARNG)

3.Hagel Memorandum, dated 3 September 2014, states liberal consideration will begiven in petitions for changes in characterization of service to service treatment recordsentries which document one or more symptoms which meet the diagnostic criteria ofPTSD or related conditions.  Special consideration will be given to VA determinationswhich documents PTSD or PTSD related conditions connected to military service.  Incases in which PTSD or PTSD related conditions may be reasonably determined tohave existed at the time of discharge, those conditions will be considered potentialmitigating factors in the misconduct that caused the under other than honorableconditions characterization of service.

4.Army Directive 2014-28 (Request to Upgrade Discharge by Veterans claimingPTSD), dated 3 November 2014, states the office of the Surgeon General will provideexpert guidance to ARBA on clinical manifestations of PTSD and behavioral indicatorsto help ARBA assess the presence of PTSD and its potentially mitigating effects.  Whenrequested, the office will provide consultation to supplement ARBA’s effort on complexcases that exceed ARBA’s capabilities.

5.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations.  Clemency generally refers to relief specifically granted from a criminalsentence.  BCM/NRs may grant clemency regardless of the type of court-martial.However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which maybe warranted based on equity or relief from injustice.  This guidance does not mandaterelief, but rather provides standards and principles to guide Boards in application of theirequitable relief authority.  In determining whether to grant relief based on equity,injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation,external evidence, sworn testimony, policy changes, relative severity of misconduct,mental and behavioral health conditions, official governmental acknowledgement that arelevant error or injustice was committed, and uniformity of punishment.  Changes to thenarrative reason for discharge and/or an upgraded character of service granted solelyon equity, injustice, or clemency grounds normally should not result in separation pay,retroactive promotions, and payment of past medical expenses or similar benefits thatmight have been received if the original discharge had been for the revised reason orhad the upgraded service characterization.

6.Title 38 (Veterans’ Benefits), U.S. Code, § 1110 and 1131 (Basic entitlement), permitthe Veterans Affairs to award compensation for disabilities that were incurred in oraggravated by active military service.  (However, an award of a higher VA rating doesnot establish error or injustice on the part of the Army.  The Army rates only conditionsdetermined to be physically unfitting at the time of discharge which disqualify the Soldierfrom further military service.  The VA does not have the authority or responsibility fordetermining physical fitness for military service.  The VA awards disability ratings toveterans for service-connected conditions, including those conditions detected afterdischarge, to compensate the individual for loss of civilian employability.  These twogovernment agencies operate under different policies.  Unlike the Army, the VA canevaluate a veteran throughout his or her lifetime, adjusting the percentage of disabilitybased upon that agency's examinations and findings.)


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