IN THE CASE OF: BOARD DATE: 27 May 2022 DOCKET NUMBER: AR20210014923 APPLICANT REQUESTS: correction of his Army National Guard records to show disability retirement vice 15-year non-regular retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 15-Year Letter * NGB Form 22 (Report of Separation and Record of Service) * Denial memorandum of combat related special compensation * VA List of Disabilities * Retired Reserve orders * ARNG Medical Disqualification Memo FACTS: 1. The applicant states he was medically discharged from the ARNG due to combat- related disability for post-traumatic stress disorder (PTSD). He is 70% service- connected by the VA for this condition. He is not receiving a disability retirement from the Army. There is no service-related pay, severance pay, or any other pay. He was told the Army messed him up when they retired him [due to not meeting medical standards for retention]. He served our country honorably but he was not discharged properly. 2. Review of the applicant's service records shows: a. He was born in March 1979 and will turn 60 in March 2039. b. He had prior active service in the U.S. Marine Corps from March 2001 to January 2009. c. He enlisted in the Tennessee Army National Guard (TNARNG) on 24 February 2009. He held military occupational specialty 92G (Food Service Specialist). d. He served through multiple extension in a variety of ARNG assignments and he attained the rank of staff sergeant (SSG)/E-6 e. On 5 December 2020, by memorandum, Subject: State Medical Review Board (SMRB) Fitness for Duty Evaluation Findings, the ARNG informed him that: (1) The 5 December 2020 State Medical Review Board (SMRB) has determined that he failed to meet the medical retention standards for continued service in the TNARNG. The basis for this SMRB finding is AR 40-501 (Standards of Medical Fitness), Chapter 3-33 (learning, psychiatric, and behavioral health). He has presented documentation of conditions that interfere with the satisfactory performance of military duties. (2) This is notice of the SMRB's unanimous recommendation for involuntary separation. The Adjutant General is the separation authority for service members with medical conditions sufficient to definitely interfere with performance of military duty. This finding in no way is intended to reflect negatively upon his service record, only that he can no longer perform military duties. Service members with fifteen (15) or more years of qualifying service are responsible for immediately contacting their unit of assignment to determine possible eligibility for retirement benefits upon reaching age 60. (3) Any soldier who fails to meet the medical retention standards for duty by any authority should not perform AT (annual training), ADSW (active duty special work), or any other type of duty or training prior to discharge without clearance from the State Surgeon. Soldier can perform IDT (inactive duty training) within the limits of their profile at the commander's discretion. (4) If he desired to appeal this decision, he has thirty days from receipt of this letter to submit to the Deputy State Surgeon's office a written request for referral to a non-duty related physical evaluation board (PEB) for a determination of fitness. This request will be included in a packet sent through unit channels to TNARNG and will contain the original evaluation packet as well. f. There is no evidence the applicant appealed this finding or requested consideration by a non-duty related PEB. g. On 23 March 2021, the ARNG issued him a Notification of Eligibility for Retired Pay at age 60 (15-Year Letter). He had completed at least 15 years but fewer than 20 years of qualifying service and will be eligible for retired pay upon his application at age 60 unless he qualifies for a reduced eligibility age in accordance with Title 10, U.S. Code, Section 12731(f). h. On 22 April 2021, the TNARNG issued order transferring him to the Retired Reserve. He completed 17 years, 11 months, and 19 days of qualifying service towards non-regular retirement. 3. He provides a listing of his VA service-connected disabilities and a denial of CRSC memo. 4. By law and regulation, Reserve Component members normally are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement. A qualifying year of service for non-regular retired pay is a full year during which a Regular or Reserve member is credited with a minimum of 50 retirement points. 5. The law further states that a member of the Selected Reserve who was medically disqualified for continued service in a Reserve Component could be considered as having met the service requirement and could be issued a Notification for Eligibility for Non-Regular Retired Pay at Age 60, 15-Year Letter, if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement purposes. The applicant here did not complete at least 15 years. 6. MEDICAL REVIEW: The Army Review Board Agency (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), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant stated that he was medically discharged from service due to his combat related PTSD. He stated that he is receiving 70% from the VA; however, he is not receiving anything from the Army. a. In December 2020, the applicant was notified by the Tennessee National Guard, that the State Medical Review Board (SMRB) found that he did not meet retention standards of AR 40-501, chapter 3-33, Learning, psychiatric, and behavioral health. The complete discharge record was not available for review. b. BH records and related while in service (1) 31Jul2008 MEF RAS Sick Call (Hawaii). The applicant was seen because he had received two OVUII (operating a vehicle under the influence of an intoxicant) within a 7 month period. He admitted to frequently driving under the influence because he was convinced he was not impaired. It was opined that a mood disturbance was likely contributing/fueling drinking more as of late. Stressors: His wife took the children back to the mainland during his Iraq deployment, and the future of the marriage was uncertain. It was also opined he likely met dependence criteria between 2006 Afghanistan and 2007 Iraq deployments. His mental status exam was within normal limits except his thinking was a bit concrete and his affect was constricted. Diagnosis: Alcohol Dependence; Rule Out Mood Disorder. He was advised to complete Intensive Outpatient Program. (2) September 2010, he was referred PTSD Consult for intrusive thoughts and nightmares as a result of combat trauma. (3) 30Apr2013/01May2013 PTSD Consult for the initial assessment. He reported mild depression, middle insomnia, some irritability, hearing rockets, and recalling seeing bodies stored in the freezer. He had served in Afghanistan (2006) and Iraq (2007) working as a Food Service Specialist. He was referred to PCT (Present?Centered Therapy) for treatment but did not attend. (4) 12Aug2015 Psychology Consult. He was referred by his primary care provider to be evaluated for PTSD. At the time, he was imminently re-joining the Army National Guard. It was assessed that his presentation and symptom report was not indicative of any form of mental illness; nor indicative of any need for psycho- therapeutic intervention. He became a certified barber in 2011 and was working at Millington Naval Air Station for the Naval Exchange vendor. He was psychiatrically cleared. (5) 13Feb2017 Psychology Consult. He presented with an anxious mood. He was employed fulltime as a barber on NAS Millington. His narrative was positive for sleep dysfunction: Difficulty falling asleep secondary to anxiety and thoughts of war, and awakening throughout the night secondary to combat-related dreams. He also reported a chronic history of persistent, and moderate-to-severe hypervigilance to include frequently patrolling his car before use, and securing/checking doors and windows numerous times at night before bed. (6) 05Feb2018, he endorsed the full range of DSM-5 PTSD symptoms. (7) 19Jun2018 Memphis VA Mental Health Note. He completed 3 (of 6) sessions (29May, 05Jun, and 19Jun of 2018) of the Cognitive Processing Therapy (CPT) for PTSD. The applicant chose to discontinue treatment prematurely because of time constraints due to partner, young kids, work and other obligations. His Mental Status Exam showed only a mildly irritable mood. (8) 30Nov2019 Social Work Emergency Department Note. He was seen in the emergency room for back pain and also requested medication for anxiety and depression. He reported problems sleeping stating the he sleeps 2 to 3 hours at a time and is awaked due to nightmares. The applicant reported that he is self- medicating with alcohol and is drinking about 16 oz of liquor daily. (9) 02Jan2020 Chemical Dependency/MH Note. He continued to self-medicate with alcohol in order to manage his mood and to be able to sleep. He stated he drank very little until his return from his first deployment. He deferred substance abuse directed counseling—primarily requesting treatment for PTSD and sleep issues. (10) 17Jan2020 Psychology Consult. He reported that sleep disturbances began following his return from deployment in 2009 after his discharge from the marines. He described vivid nightmares containing memories of his trauma(s) (i.e., mortar attacks). He further reported the development of excessive alcohol consumption. Lastly, he described psychosocial stress stemming from parental responsibilities, full-time college enrollment, and full-time occupational duties, all of which seem to affect him emotionally, mentally, and physically. Diagnoses: PTSD, Chronic; OSA; and Alcohol Use Disorder. (11) 23Nov2020 Mental Health Note. He reported irritability and feeling overwhelmed. Specific Combat Trauma: He reported that he had a friend who was killed. He also reported being full service and had to clean out freezer boxers and had to put his friend in the freezer as well as other bodies. He reported being around burn pits where he stated bodies were being burnt. And finally, he reported being shot at. CPAP masks reminded him of being in a bunker. Wearing a mask for COVID triggered memories of deployment. He also resisted the CPAP mask also because there is a chip in the machine and caused him to feel paranoid. He was taking Naltrexone but admitted to drinking daily 12- 16 oz of wine. PCL-5 score 54 (severe PTSD symptoms reported). (12) 16Jul2021 Mental Health Pharmacy Note. He presented on time and alone for his 18th scheduled medication follow-up appointment for medication adjustment. Diagnoses: Chronic PTSD, Sleep Apnea (not compliant with CPAP), Panic Disorder without Agoraphobia, and Moderate Alcohol Use Disorder (on Naltrexone). He had a modest reduction in behavioral health symptoms. c. The partial document listed VA rated disabilities that was submitted with the application documents was noted and already recorded in the ROP. The AHLTA and JLV records were reviewed. The following records were noted: (1) 03Mar2008 Sports Medicine Clinic. He was seen for bilateral leg pain. He had a history of bilateral shin splints in 2005. Recent bone scan was negative for stress fracture. He stated “the pain was nothing”, he ran 10 miles week. (2) Periodic Health Assessments 07Sep2013, 02June2012 16May2010 showed that the applicant was deployable and PULHES 111111. (3) 09Feb2016 Report of Medical Examination showed no physical exam abnormalities except he was given a temporary physical profile (T3) for being overweight. After follow up, ultimately, his physical profile was PULHES 111111. (4) Most recent APFT was passed 18Oct2019. (5) NCO Evaluation Report covering period from 20190616 thru 20200615, with principle duty title NCOIC of the Cook Section with MOSC 92G30, he was described as “a solid NCO that is ready to take on additional responsibilities”. (6) Distributed Leader Course II on 24May2020 was successfully completed. d. The applicant had partial CPT therapy in 2018. He reengaged with BH services in individual therapy in January 2020; and began a psychotropic agent in April 2020. Despite treatment he continued self-medicating with excessive alcohol use which in turn caused providers to limit psychotropic intervention. Recommendation/Rationale: Despite not being psychiatrically hospitalized and his complete BH profile history being unknown; it appears that records found in AHLTA and JLV, in conjunction with the 05Dec2020 notification of the SMRB finding that he failed retention standards, support that the PTSD likely did NOT meet retention standards. In addition, evidence supports that the condition was service incurred (during Marine Corps service). Recommend referring the case to the DES for processing. And finally, based on information available for review, evidence was insufficient to support that the applicant had other condition(s) which failed retention standards of AR 40-501 chapter 3 both at time of release from active duty and at the time of transfer into the Retired Reserve. BOARD DISCUSSION: After review of the application and all evidence, the Board found some relief is warranted. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. Based upon the preponderance of the evidence, the Board agreed the applicant’s record should be referred to the Office of the Surgeon General for medical evaluation consideration, with all relief dependent upon a final medical determination. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XXX :XXX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Legacy Disability Evaluation System (DES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the DES, these proceedings will serve as the authority to void his separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains changing his type of discharge without evaluation under the DES. 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. Public Law 106-65, enacted 5 October 1999, amended chapter 1223 (Retired Pay for Non-Regular Service) of Title 10, U.S. Code by adding section 12731b, (Special rule for members with physical disabilities not incurred in line of duty). Section 12731b(a) states that a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability may, for the purposes of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided the notification required if he has completed at least 15 and less than 20 years of service. (While a qualifying year is determined to be a year in which a minimum of 50 retirement points have been credited for a reservist, it is a full year (365 or 366 days, as applicable) for a member of the Regular Army). 2. Title 10, U.S. Code, section 12731, provides that a non-regular service member is entitled, upon application, to retired pay if the person is at least 60 years of age; has performed at least 20 years of qualifying service; and, having completed the service requirement during the period beginning on 1 October 1994 and ending on 30 September 1999, shall have performed the last 6 years of qualifying service while a member of an RC. This requirement was eliminated in 2005. 3. Title 10. U.S. Code, section 12731 (Temporary special retirement qualification authority) (a) (Retirement With At Least 15 Years of Service), states for the purposes of section 12731 of this title, the Secretary concerned may (1) during the period described in subsection (b), determine to treat a member of the Selected Reserve of an RC of the armed force under the jurisdiction of that Secretary as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member (A) as of 1 October 1991, has completed at least 15, and less than 20, years of service computed under section 12732 of this title; or (b) after that date and before the end of the period described in subsection (b), completes 15 years of service computed under that section; and (2) upon the request of the member submitted to the Secretary, transfer the member to the Retired Reserve. 4. Army Regulation 40501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, and appointment, including officer procurement programs; medical fitness standards for retention and separation, including retirement; medical standards and policies for aviation; and certain enlisted military occupational specialties (MOSs) and officer assignments such as civil affairs, psychological operations, and Army maritime sea duty. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014923 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1