IN THE CASE OF: BOARD DATE: 10 August 2023 DOCKET NUMBER: AR20220005982 APPLICANT REQUESTS: change her separation due to disability with severance pay to a medical retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * VA Request for and Authorization to Release Health Records * Self-authored statement * Letter from a VA Licensed Clinical Social Worker * Correspondence from VA Medical Center * VA Treatment Discharge Instructions * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 16 December 1986 and ending on 19 April 2007 * Medical documents from Touchstone Medical Imaging * Medical Documents from Spine and Joint Pain Specialists FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 the correction should be made because of the number of years of service, including Reserve service time and related medical information and review of records. She has enclosed medical documentation related to some of her ailments including PTSD/MST (post-traumatic stress disorder/military sexual trauma) at Fort Hood and she is also a survivor of domestic violence and sexual trauma. She is also going through physical therapy for her back and lumbar needs. Last year, she received some shots for sciatica and left lower side of her body that was immobile for a period of 5 months. She continues to experience pain in her right side. She takes medications for the pain and lists her medications. The applicant marked PTSD, TBI (traumatic brain injury), Other Mental Health, and Sexual Assault/Harassment on her application. 3. The applicant provides a statement from a VA Licensed Clinical Social Worker who states the applicant is a disabled veteran who seeks medical and psychiatric treatment via the Southeast Louisiana Veterans Health Care System. She has seen the applicant for psychotherapy since 08-25-2009. Also, she was referred to various mental health h prescribers for psychopharmacological care over the course of her treatment. When she met with the applicant on 09-22-2009 in particular: She said that she had a difficult time when her comrades' names were called during roll call, and they did not present due to a casualty. Subsequently, she described the aftermath she experienced after her exposure to an improvised explosive device. Thus, she described "that she heard people cooking from an explosion of the gases." Moreover, she described Death Valley in Iraq and how MosuI, Tikrit, and Kirkuk were hot areas in terms of combat and how Karbala became a hot area in 2003-2004 and how between here and Baghdad and Hilliah became Death Valley. Next, she recalled sleeping in tents when they were under fire and sandbags were about three-four feet high. Notably, she talked about traveling by plane and flying from Iraq to Germany (she went to German secondary to a hip injury) and how she was keenly aware that dead bodies/coffins/corpse were in the belly of the plane. She has history of Insomnia secondary to bad dreams and nightmares and has had times in which she would awaken thinking she was being "attacked/hurt/ stabbed." She informed her that she required a sleep aid while on active duty, Ambien. To elucidate, she has experienced domestic violence in her past and her husband was her perpetrator while she was on active duty. This included sexual trauma. Therefore, she has a longstanding history of suffering with PTSD, Anxiety, Depression, and Insomnia. 4. Review of the applicant s service records shows: a. She has prior U.S. Army Reserve service during which she entered active duty for training from 29 July to 16 December 1986 and completed training for award of military occupational specialty 77F, Petroleum Supply Specialist. b. She enlisted in the Regular Army on 3 June 1993. She served through multiple reenlistments in a variety of stateside or overseas assignments, including service in Iraq from 13 April 2003 to 12 April 2004. c. The applicant s Medical Evaluation Board (MEB) Narrative Summary (NARSUM) noted: (1) In May 2003, the applicant developed bilateral hip pain while deployed, without specific traumatic incident. Bilateral hip magnetic resonance imaging (MRI) taken on 23 July 2003 noted a focal area of bone swelling in the right hip. According to the NARSUM she was diagnosed with stress reactions of the hips and advised not to return to theater, but at her request, she completed her deployment. Notes in the service treatment record indicated following her return from deployment, she was evaluated by physical medicine and neurology in July 2004. Lumbar MRI was normal; bone scan and MRI of the pelvis in September 2004 continued to show stress changes of the hips, with no other abnormalities noted. (2) A Rheumatology evaluation in October 2004 noted abnormal nonspecific laboratory tests consistent with inflammation, but no other evidence of a systemic inflammatory disease, and recommended a P2 profile. A Rheumatology follow?up on 14 December 2004 noted she reported continued hip and groin pain with flexion of the hips and the assessment was myofascial pain syndrome and no further rheumatology evaluation was recommended at the time. Repeat MRI of the hips on 9 May 2006 showed bilateral stress changes, worse compared with the previous September 2004 MRI. In January 2007, bilateral lower extremity electro?diagnostic studies and a bone density test (DEXA scan) were normal (no evidence of a neurological problem or osteoporosis). She was treated with various types of physical therapy and was on multiple temporary profiles, but the bilateral hip pain continued, and an MEB was initiated. d. The MEB found her condition of bilateral hip pain failed medical retention standards. Other conditions were listed and include left shoulder, right wrist, upper back, and bilateral knees, but they did not fail medical retention standards of Army Regulation (AR) 40-501 (Standards of Medical Fitness). The MEB referred her to a physical evaluation board (PEB). e. The applicant s DA Form 199 (Physical Evaluation Board (PEB) Proceedings) is not available for review. Other evidence shows on 3 January 2007, a formal PEB convened and found her medical condition of bilateral hip pain unfitting. The PEB rated the bilateral hip condition 10%, coded 5099?5003 (Analogous to degenerative arthritis). The applicant s other medical conditions listed (left shoulder, right wrist, upper back, and bilateral knees) were not unfitting. The formal PEB recommended the applicant s disposition be separation with entitlement to severance pay if otherwise qualified. f. On 21 February 2007, Headquarters, I Corps, Fort Lewis, WA published Orders 052-0008 ordering her discharge effective 19 April 2007 due to disability at a combined rating of 10%. g. The applicant was accordingly discharged on 19 April 2007. Her DD Form 214 shows she was discharged due to disability with entitlement to severance pay in accordance with paragraph 4-23(b)(3) of AR 635-200 (Physical Evaluation for Retention, Retirement, and Separation). She completed 13 years, 10 months, and 17 days of active service and she received $75,204 in severance pay. h. On 25 June 2014, she applied to the DOD Physical Disability Board of Review (PDBR) asking that board to consider all her conditions. i. The DOD PDBR considered her request and amended her disability rating. In accordance with Title 10 1554a and in compliance with DoDI 6040.44, the PDBR adjudicated the disability rating accompanying the medical separation of the applicant. After carefully reviewing the application and medical separation case file, the PDBR recommended modification of the disability rating previously assigned to reflect a combined rating of 20% rather than 10%, without re-characterization of the separation, as follows: (1) The PDBR determined that the evidence in record supports a 10% rating for each hip and no higher and chose to code the hips 5299-5252. After due deliberation, considering all the evidence and mindful of VASRD 4.3 (Reasonable doubt), the PDBR majority recommended a disability rating of 10% for the right hip condition and 10% for the left hip condition. (2) The PDBR determined that the MEB found the applicant s left shoulder, right wrist, upper back, and bilateral knee conditions to have met retention standards j. On 17 August 2016, the Deputy Assistant Secretary of the Army (Review Boards) (ASA(RB)) informed the applicant that the DOD PDBR reviewed her application and found that your disability rating should be modified but not to the degree that would justify changing her separation for disability with severance pay to a permanent retirement with disability. The DASA (RB) reviewed the PDVR s recommendation and record of proceedings and accepted its recommendation. This will not result in any change to her separation document, or the amount of severance pay. This decision is final. Recourse within the DOD or the Department of the Army is exhausted; however, she has the option to seek relief by filing suit in a court of appropriate jurisdiction. k. On 6 October 2016, Installation management Command, Joint Base Lewis- McChord amended the applicant s separation orders (dated 21 February 2007) to show the percentage of disability as 20% vice 10%. 5. On 19 May 2023, in response to a request for Sanitized Report of Investigation (ROI) and/or Military Police Report (MPR) Military Sexual Trauma (MST) [Applicant], the U.S. Army Criminal Investigation Command (CID) advise that a search of the Army criminal file indexes utilizing the information provided revealed no records pertaining to the applicant. CID advised that records at this center are Criminal Investigative and Military Police Reports and are indexed by personal identifiers such as names, social security numbers, dates and places of birth and other pertinent data to enable the positive identification of individuals. 6. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting a change her to separation due to disability with severance pay to a medical retirement. She is contending that she experienced a traumatic brain injury (TBI), PTSD, Sexual Assault/Harassment (MST), and other mental health conditions. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant had prior U.S. Army Reserve service, and she initially entered active duty for training from 29 July to 16 December 1986. She enlisted in the Regular Army on 3 June 1993; 2) The applicant was deployed to Iraq from 13 April 2003-12 April 2004; 3) In May 2003, the applicant developed bilateral hip pain while deployed. She was recommended for an MEB. The applicant s DA Form 199 (Physical Evaluation Board (PEB) Proceedings) was not available for review. There was evidence dated 3 January 2007, a formal PEB convened and found her medical condition of bilateral hip pain unfitting. The PEB rated the bilateral hip condition 10%. The applicant s other medical conditions listed (left shoulder, right wrist, upper back, and bilateral knees) were not unfitting; 4) The applicant was discharged on 19 April 2007 due to disability with severance pay; 5) The applicant applied to the DOD Physical Disability Board of Review (PDBR) asking that board to consider all her conditions. On 17 August 2016, the applicant was informed that the DOD PDBR reviewed her application and found that her disability rating should be increased to 20%. However, this would not justify changing her separation for disability with severance pay to a permanent retirement with disability. c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed the supporting documents and the applicant s military service and medical records. The VA s Joint Legacy Viewer (JLV) and the provided hardcopy civilian medical documentation were also examined. d. The applicant states while on active service, she incurred PTSD, a TBI, other mental health disorders, and experienced MST, which should have resulted in a physical disability discharge. There was insufficient evidence the applicant was ever diagnosed with a mental health condition or a TBI, while on active service. There was also insufficient evidence the applicant reported experiencing MST while on active service. The applicant was deployed to a combat environment, but there is insufficient evidence that she was treated for a TBI or a mental health condition, including PTSD as a result of this deployment. In addition, there is insufficient evidence she was identified as being unable to perform her duties due to a TBI, MST, or mental health condition including PTSD. The applicant did undergo a PEB while on active service. The applicant did not report experiencing mental health conditions or a TBI in her initial PEB, and a review of her PEB rating later in 2014 did not find her to be experiencing an unfitting mental health condition including PTSD and TBI while on active service. e. A review of JLV did provide sufficient evidence the applicant has been diagnosed with generalized anxiety disorder, PTSD, insomnia, and migraines. She also provided support documentation from her VA providers. The applicant was described to experience chronic migraine headaches due to a TBI from a Nurse Practitioner, dated 14 June 2019, from the Neurology Department at Southeast Louisiana Veterans Health Care System. She also provided documentation from a Licensed Clinical Social Worker from the same VA clinic, dated 16 June 2022. The applicant was reported to be experiencing insomnia, PTSD, anxiety, depression, and a history of MST. The applicant receives 100% service-connected disability. She was diagnosed with service-connected generalized anxiety disorder (30%), but she was not diagnosed with service-connected PTSD. She was also diagnosed with service-connected migraines (30%), but they were found to be unrelated to a TBI during her C&P evaluations. f. Based on the available information, it is the opinion of the ARBA BH Advisor that the applicant did not report or exhibit a mental health condition or symptoms of a TBI while on active service. There was also insufficient evidence she reported experiencing MST while on active service. In addition, there was insufficient evidence the applicant demonstrated an inability to perform her duties as required due to a mental health condition, PTSD, MST, or TBI. She has been diagnosed with service-connected generalized anxiety disorder, but she has not been diagnosed with service-connected PTSD or TBI. Therefore, there is insufficient evidence at this time that the applicant warrants a referral to IDES from a behavioral health perspective. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends she experienced PTSD, TBI, MST and other mental health conditions while on active service. She has been diagnosed with PTSD, migraines related to a TBI, and other mental health conditions after being discharged from active service. (2) Did the condition exist or experience occur during military service? Yes, the applicant contends he experienced PTSD, TBI, MST and other mental health conditions while on active service. She has also been diagnosed with service-connected generalized anxiety disorder. (3) Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient information the applicant was diagnosed with a mental health condition, including PTSD and TBI or displayed an inability to perform her duties while on active service. There is also insufficient evidence her experience of MST impacted her ability to complete her military duties. Therefore, there is insufficient evidence at this time to support a referral to IDES. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of requests for changes to discharges/ 2. The Board concurred with the conclusion of the ARBA BH Advisor that the evidence does not indicate that any mental health conditions were of sufficient severity during her period of service that they warranted consideration by the Disability Evaluation System. Based on a preponderance of the evidence, the Board determined the applicant s discharge for disability with severance pay was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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, U.S. 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 ABCMR determines it would be in the interest of justice to do so. 2. 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. 3. 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) AR20220005982 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1