IN THE CASE OF: BOARD DATE: 9 March 2023 DOCKET NUMBER: AR20220008433 APPLICANT REQUESTS: this case comes before the Army Board for Correction of Military Records (ABCMR) on remand from the United States Court of Federal Claims (hereinafter refer to as The Court). The Court directs the ABCMR to: * consider all the claims, evidence, and arguments Plaintiff raises in his new brief and any subsequent pleadings * address all nonfrivolous arguments raised in Plaintiff’s new brief and any subsequent pleadings, and if it concludes that an argument is frivolous, the ABCMR should state why the argument is frivolous * identify the governing statutes and regulations applicable to Plaintiff’s claims, and assess Plaintiff’s claims under the applicable statutes and regulations * explain whether, “in the interests of justice, ... a later version of a regulation that was not in effect at the time of Plaintiff’s discharge should be applied to Plaintiff’s claims;” * provide a reasoned explanation for its conclusions; simply reciting applicable laws and regulations, the alleged facts, the parties’ arguments, and declaring a winner without explanation will not be sufficient APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Counsel Complaint to U.S. Court of Federal Claims, filed 9 February 2022 * Motion to Remand, filed 5 April 2022 * United States Court of Federal Claims Order, filed 14 September 2022 * Submission of Brief on Remand with Exhibits * Exhibit A: Medical records * Exhibit B: Declaration of the applicant * Exhibit C: Supplemental declaration of the applicant * Exhibit D: Second Supplemental declaration of the applicant * Exhibit E: Department of Veterans Affairs (DVA) Rating Decision, 14 January 2021 * Exhibit F: DVA summary of benefits letter, 1 December 2021 * Exhibit G: Advisory Opinion, 4 May 2020 * Exhibit H: AR20170017846, Record of Proceedings, 6 July 2020 * Exhibit I: United States Court of Federal Claims Complaint (Complaint) * Exhibit J: United States Court of Federal Claims Order (Remand Order), 14 September 2022 * Exhibit K: United States Court of Federal Claims Order (Order for enlargement of time), 26 October 2022 * Exhibit L: Condensed Transcript with Word Index from United States Court of Federal Claims, 9 August 2022 FACTS: 1. The Court’s Order for Remand filed on 14 September 2022, states during the hearing on this matter, the Court made clear the concerns it has regarding the ABCMR’s not addressing nonfrivolous arguments the applicant raised to it, the potential lack of a clear, reasoned explanation for the ABCMR’s decision, and the fact that Plaintiff is making arguments here that he did not raise to the ABCMR, which this Court may not address. The court ordered: a. The ABCMR shall reopen the record and provide Plaintiff with the opportunity to submit a new brief that contains all the claims, evidence, and arguments he wishes to raise to the ABCMR. Plaintiff shall submit this new brief to the ABCMR within 45 days of the Court entering a remand order and should adhere to any ABCMR filing rules. On 26 October 2022, the Court granted the applicant’s unopposed motion for enlargement of time to 7 November 2022. b. The ABCMR shall consider all the claims, evidence, and arguments Plaintiff raises in his new brief and any subsequent pleadings with the ABCMR, including, but not limited to, how the Kurta Memorandum, including paragraphs 3 through 26 of the memoranda, applies to Plaintiff’s claims, if at all. c. The ABCMR shall address all nonfrivolous arguments raised in Plaintiff’s new brief and any subsequent pleadings, and if it concludes that an argument is frivolous, the ABCMR should state why the argument is frivolous. d. The ABCMR will identify the governing statutes and regulations applicable to Plaintiff’s claims and assess Plaintiff’s claims under the applicable statutes and regulations. 2. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20170017846 on 6 July 2020. 3. Counsel states: a. The applicant is a United States Army (“Army”) combat veteran and Purple Heart recipient. Though the Army diagnosed the applicant with Post Traumatic Stress Disorder (PTSD) on more than twenty (20) occasions leading up to his discharge and repeatedly found that this condition interfered with his effective military performance, the Army failed to refer him into the Disability Evaluation System (DES) for evaluation and instead administratively separated him for a fictitious “adjustment disorder.” The Army’s decision was in violation of its own regulations and protocols and was contrary to the manifest weight of the evidence, which demonstrates that the applicant suffered from service-connected PTSD at the time of his discharge that was rated more than thirty (30) percent disabling at that time and is currently rated one hundred (100) percent disabling. Because the Army failed to properly evaluate his PTSD, he has been denied the monthly military disability retirement income and Tricare benefits to which he and his family are entitled. b. Counsel provides background of the applicant’s job, assignments, and awards and decorations he earned throughout his career. During his deployment to Iraq the applicant witnessed traumatic events that included, among other things: * witnessing an enemy sniper kill his squad leader * being thrown from a vehicle after hitting an improvised explosive device (“IED”), which rendered him unconscious and caused him to suffer numerous shrapnel injuries * being covered with the blood and flesh of an interpreter who was disintegrated by the IED explosion * witnessing the death of his good friend and truck commander, who died after his lower body was dismembered by the IED explosion * having three of his unit members burn alive after yet another IED explosion * experiencing the loss of nearly everyone in his unit at the hands of enemy fire c. Counsel detailed the applicant’s evidence of in-service disability, to include specific dates of events that led to the applicant’s PTSD. He was diagnosed with PTSD on eleven separate occasions between 7 October 2007 and the date of his discharge. The applicant was not discharged for his debilitating PTSD, nor was he even referred into DES for a proper evaluation of his persistent and recurrent symptoms that repeatedly resulted in the limitations of his duties and materially interfered with his effective military performance, as was required under applicable law and Army regulations. Counsel provided a graph timetable on page 7 of his brief that depicts the applicant’s disability of PTSD and eventual discharge for adjustment disorder. d. Counsel detailed the applicant’s post-service continued diagnosis of PTSD and his struggles with PTSD shortly following his discharge. On 12 December 2008, the VA granted the applicant service connection for PTSD at 100% disabling effective 10 July 2008. He continues to suffer from the debilitating symptoms of PTSD daily in which the applicant detailed in his first and second supplemental declarations. He faces chronic nightmares, panic attacks, insomnia, hypervigilance, irritability, and avoidance. e. In his petition for relief to the ABCMR, counsel states the Agency Psychologist issued an Advisory Opinion on 4 May 2020, to the ABCMR recommending that the applicant’s petition for relief be denied. Specifically, the Advisory Opinion found that although the applicant was repeatedly diagnosed with PTSD by the Army and had “significant symptoms while deployed,” referral to DES was not warranted because there was no report of inability to perform his duties at work. f. In a one-paragraph explanation, the ABCMR stated that although the applicant’s “in-service diagnoses of PTSD are noted, the Board also noted the multiple situational stressors,” including “marital stress, denial of a request for early release to attend school, and general dissatisfaction with the Army.” The ABCMR also found it significant that none of the applicant’s providers recommended he be referred to a Medical Evaluation Board despite frequent contact with behavioral health providers during his active-duty service. Finally, the ABCMR stated that it could not question an examiner’s pre-discharge finding that the applicant met retention standards for an adjustment disorder, even though that same examiner also simultaneously diagnosed the applicant with PTSD and opined that he was unfit to perform his military duties as an Infantryman due to his debilitating symptoms from “his previous combat experiences.” g. Counsel argues the Army erred when it administratively separated the applicant for an adjustment disorder, rather than retiring him for PTSD. A Soldier must be medically retired when he is “unfit to perform the duties of office ... because of physical disability.” 10 U.S.C. § 1201. A Soldier qualifies for medical retirement when (1) His disability makes him unfit for continued military service because he cannot perform his military duties and. (2) The degree of such disability is at least 30% disabling under the VA’s disability rating schedule. Army Regulation (AR) 40-501 (Standards of Medical Fitness); 38 C.F.R. § 4.130; 10 U.S.C. § 1201(a). h. The manifest weight of the evidence demonstrates that the applicant should have been medically retired due to his disabling PTSD. For the reasons discussed below, the ABCMR should recommend that all Department of the Army records pertaining to the applicant be corrected to reflect that he was placed on the Permanent Disability Retirement List due to a disability rating for PTSD exceeding 30 percent. The ABCMR should further award the applicant payment of all benefits he is owed as a result of the correction. i. Counsel argues the Army’s decision to separate the applicant for an adjustment disorder is erroneous because it ignores the manifest weight of the evidence and contravenes the Army’s own regulations. From the onset of his PTSD symptoms on 17 October 2006, to the date on which he was recommended for administrative discharge, 12 May 2008, the applicant was diagnosed with PTSD on more than twenty occasions and with an adjustment disorder just once (See TJN 000004-6). This singular diagnosis of adjustment disorder was made by a social worker, not a medical doctor, psychologist, or psychiatrist. In contrast, the vast majority of the applicant’s PTSD diagnoses were rendered by a psychiatrist or doctoral-level psychologist who concluded that the applicant’s combat-related PTSD rendered him unfit for duty and recommended that he be placed on limited duty as a result. See, e.g., (TJN 000004-05;12-13; 20-22; 28-30). In violation of its own established procedures, however, the Army ignored the overwhelming evidence demonstrating that the applicant suffered from debilitating PTSD based on his combat deployment. Instead, the Army relied on a single errant adjustment-disorder diagnosis in separating him for a condition, not a disability. j. Counsel details the diagnosis of an adjustment disorder was erroneous because the same symptomology met the criteria for, or was merely an exacerbation of, the applicant’s well-documented combat-related PTSD. (1) At all relevant times herein, the Army followed the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association (APA) to assess mental health and stress/trauma disorders such as PTSD, traumatic brain injury (TBI), and adjustment disorder. AR 40-501 § 3-31, Note to Chapter 3 (“Diagnostic concepts and terms used in paragraphs 3-31 through 3-37 are in consonance with the ... [DSM-IV].”) Pursuant to the applicable DSM and Army regulations, it is improper to diagnose an individual with an adjustment disorder where (1) the underlying disturbance (i.e., symptomology) meets the criteria for another specific Axis I disorder (e.g., PTSD), or (2) underlying symptomology is merely an exacerbation of an already existing Axis I disorder (e.g., PTSD). AR 40–501, Note to Chapter 3; DSM-IV, Diagnostic Features of Adjustment Disorder and Diagnostic Criteria of Adjustment Disorders, at pp. 679, 683. If an individual has been diagnosed with PTSD, a diagnosis of adjustment disorder is improper unless the individual’s PTSD does not account for the particular symptoms the individual experienced in reaction to the stressor. DSM-IV, Differential Diagnosis of Adjustment Disorder, at pp. 681-682. (2) Here, the manifest weight of the evidence demonstrates that the applicant suffered from PTSD and that all his symptoms (anxiety, depression, withdrawal, material issues, and other psychological issues) resulted from the trauma he experienced in combat. The record is also clear that those symptoms worsened (or were exacerbated) throughout his enlistment. The record is also clear that the single diagnosis of adjustment disorder was premised on those same symptoms. Thus, under applicable Army regulations and the DSM, the diagnosis of adjustment disorder was improper. (3) The applicant’s service records show that he had been suffering from PTSD- related anxiety, depression, and other psychological issues since 17 October 2006—the date on which he witnessed an enemy sniper kill his squad leader. (TJN 000012-13; at 4-9). Army medical personnel determined that this acute and identifiable trauma/stressor, and the resulting symptoms that he experienced, met the criteria for PTSD on over twenty separate occasions (eleven of which came after his errant adjustment disorder diagnosis). (TJN 000004-06; 12-13; 20-22; 28-30; at 10-11). Moreover, these symptoms were exacerbated by his subsequent combat-related traumas, including witnessing several members of his squad die in attacks that he was fortunate to survive, as detailed above. Army medical personnel determined on multiple occasions that the severity of his PTSD and resulting symptoms required him to be placed on limited duty. (TJN 000004-06; 12-13; 20-22; 28-30). (4) His service records further demonstrate that he was still suffering from these same battle-related PTSD symptoms more than one year later when Dr. the physician who conducted the applicant’s discharge evaluation, specifically stated that the applicant’s “depression and anxiety issues” – the same symptoms the Army consistently found met the criteria for PTSD – were “related in part to his previous combat experiences,” had “worsened” despite treatment, and were not likely to get better “in the immediate future.” (TJN 000043). Two weeks after Dr. discharge evaluation, but before the applicant was discharged from the military, Army medical personnel similarly found that the applicant had been seen and treated for PTSD on “numerous occasions,” but despite such treatment, his “PTSD [was] not improving” and was therefore the reason he was being discharged. (TJN 000051; 55) (27 May 2008 medical note stating that “PTSD Chapter 5-17 recommended by MAJ mental health SFT clinic”). Though Army medical personnel identified his PTSD as the reason for his discharge, the Army denied the applicant medical retirement based on a single diagnosis of adjustment disorder. Taking his symptomology and twenty-plus diagnoses of PTSD together with applicable Army regulations and the DSM (as they must be), the single errant diagnosis of an adjustment order cannot stand. (5) The 4 May 2020, Advisory Opinion upon which the ABCMR relied to deny the applicant initial petition for relief conceded that the applicant was repeatedly diagnosed with and suffered from PTSD throughout his time in the Army. See (Exhibit G, Advisory Opinion at pp. 2-3, 5-7). Significantly, the Advisory Opinion did not conclude, much less suggest, that the applicant suffered from any other non-compensable mental health disorder, such as an adjustment disorder or personality disorder. Indeed, the Advisory Opinion avoided discussing the adjustment disorder diagnosis entirely, including the fact that an adjustment disorder is improper under the DSM when the underlying symptoms meet the criteria for PTSD. See DSM-IV, Diagnostic Features of Adjustment Disorder and Diagnostic Criteria of Adjustment Disorders, at pp. 679, 683. Instead, the Advisory Opinion concluded that the applicant suffered from some unspecified “behavioral health condition,” which is a term that is not defined in the Advisory Opinion, or, to knowledge, in any applicable regulation or in the DSM, Fourth Edition or Fifth Edition. (Exhibit G, Advisory Opinion, at p.3, 7). In other words, the Advisory Opinion’s conclusion is meaningless for the purpose of determining whether the condition necessitating the applicant’s discharge was compensable. (6) The Advisory Opinion’s repeated acknowledgment of the applicant’s PTSD and silence on the adjustment disorder diagnosis all but concedes the Army’s error. Finding no clinical support for the adjustment disorder diagnosis, the Advisory Opinion attempts to justify the applicant’s separation by noting that he allegedly expressed that he no longer wished to serve in the military and was having marital issues. See (Exhibit G, Advisory Opinion at p. 3, 7). The Advisory Opinion fails to recognize, however, that impaired relationships, marital conflict, withdrawal, negative thoughts about serving in the Army, and job loss are key features of PTSD identified in the Fourth Edition of DSM and Fifth Edition of the DSM, which the Advisory Opinion lists as a “Reference.” (Exhibit G, Advisory Opinion at 1, 1);7 DSM-IV, Post-Traumatic Stress Disorder, Associated Features and Disorders, at p. 465. By isolating these symptoms from the applicant’s well documented PTSD and treating them as conditions, the Advisory Opinion improperly discounted the repeated clinical opinions of the applicant’s treaters and ignored the guiding medical literature on which the Advisory Opinion relied. See, e.g., (finding the Army violated AR 40–501, which “invoke[s] the standards of the medical community” by incorporating and following the DSM, when the Army failed to consider the DSM in separating a veteran for an adjustment disorder instead of PTSD). Had the Advisory Opinion properly considered the impact of these battle-related symptoms, it would have determined that any alleged lack of desire to continue serving in the military and/or concerns about his family or the future were symptoms of the applicant’s well- documented PTSD. See Kurta Memo, 26(e) (stating that PTSD and TBI “inherently affect one’s behaviors and choices causing veterans to think and behave differently than might otherwise be expected”); see also (Exhibit C, Applicant First Supplemental Declaration, at 6-7) (“I experienced marital problems because the PTSD made me into a different person: I was temperamental and on-edge, depressed, anxious, and exhausted from not being able to sleep…My wife was not sure that she could live with me and I was afraid that my PTSD would prevent me from being a husband and father.”); DSM-IV, Differential Diagnosis of Adjustment Disorder, at pp. 681-682 (stating that an adjustment disorder cannot be diagnosed in addition to PTSD if PTSD could account for the particular symptoms that occur in reaction to the stressor). (7) Accordingly, because the manifest weight of the evidence demonstrates that the applicant’s same symptomology that led to the errant adjustment disorder also met the criteria for PTSD, the Army’s decision to separate him for an adjustment disorder was erroneous and must be corrected. k. Counsel states the recommendation to separate the applicant for an adjustment disorder was erroneous because it was not supported by documentation confirming the existence of an adjustment disorder. (1) “A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.” AR 635-200 (Active Duty Enlisted Administrative Separations) § 5-17(b). “By definition, an adjustment disorder must resolve within six months of the termination of the stressor (or its consequences).” DSM-IV, at 679 (emphasis added); see also AR 40-501 § 3-31; Cowles, 2014 WL 12767682, at *9) (“Adjustment Disorder is a temporary ailment.”). (2) Here, there is no documentation confirming that the applicant had a temporary adjustment disorder that resolved within 6 months of the termination of his underlying stressors – namely, the acute traumas he experienced in combat in October 2006 and March 2007. To the contrary, the evidence is clear that he was still experiencing symptoms in May 2008 and up through his discharge in July 2008, well over a year after the termination of the last acute stressor in March 2007. On 12 May 2008, more than one year after the applicant’s debilitating symptoms began and the underlying stressors terminated, the Army determined that the applicant’s symptoms “ha[d] worsened” and he was not expected to “make any meaningful recovery in the immediate future.” (TJN 000043). On 26 May 2008 a medical examiner expressly stated that the applicant was “treated for PTSD” and again found that his condition was “not improving.” (TJN 000051). Thus, the manifest weigh of the evidence aptly shows that the applicant’s mental condition lasted longer than six months, making a diagnosis of adjustment disorder improper for this reason alone. l. Counsel states the recommendation to separate the applicant for an adjustment disorder was erroneous because the Army did not provide him with six months of counseling as required under its own regulations. (1) The Army violated its own regulations by recommending the applicant be separated for an adjustment disorder without providing him with the mandatory formal counseling “concerning deficiencies as reflected in appropriate counseling or personnel records.” AR 635-200 § 5-17(c). Federal courts have interpreted this provision to allow at least six months of counseling to confirm a diagnosis of adjustment disorder. See at *7. The purpose of this requirement is, in part, to ensure that the diagnosis of adjustment disorder is proper. (2) Here, evidence shows that the applicant received at most two months of counseling following his diagnosis of an adjustment disorder. He received his first counseling session for his single errant adjustment disorder diagnosis on 3 March 2008, and he was recommended for an administrative discharge for that same diagnosis two months later. (TJN 000043). The failure to allow at least six months of counseling related to the adjustment disorder diagnosis is a direct violation of the mandates set forth in AR 635-200 and . See at *11 (finding the Army violated AR 635-200 by separating a veteran for an adjustment disorder instead of PTSD without providing at least six months of counseling to support the adjustment disorder diagnosis). Had the Army provided the applicant with an adequate amount of counseling, as it was required to do by its own regulations, it would have certainly realized the adjustment disorder diagnosis was medically unsupported and properly retired the applicant for PTSD. After all, he was diagnosed with PTSD eleven additional times by Army medical personnel between 3 March 2008, and his discharge. (TJN 000004-06; 81-82). The Army’s actions must be corrected. m. Counsel argues the ABCMR should not rely on Dr. retention standards opinion because it was based on the Army’s failure to comply with its own regulations. (1) Where the Army fails to follow its own procedures, “[t]he ABCMR [i]s bound to address how the inadequacy of the Army’s procedures would affect its resolution of [the veteran’s] case.” at *11. In Cowles, the veteran argued that the Army failed to follow its own diagnostic and procedural requirements when separating him for an adjustment disorder rather than PTSD. Id. at *7-11. The Court agreed and found that the Army violated its own regulations, including AR 635-200 and AR 40-501, when it separated the veteran for an adjustment disorder. Id. The Court went on to discuss how the Army’s violations impacted the ABCMR’s decision to deny the veteran’s requested relief, given the ABCMR’s reliance on the Army’s ultimate diagnosis of and separation for an adjustment disorder. Id. at *11. Specifically, the Court stated: The court concludes that the ABCMR committed error by relying on the Army’s diagnosis under these circumstances ... [and] conclu[ding] that the Army’s diagnosis was presumptively free from fault. Given the Army’s violations of the requirements that the law imposes on it when it classifies soldiers at the time of discharge, [citation omitted], the ABCMR was bound to address how the inadequacy of the Army’s procedures would affect its resolution of case. It did not do so. Instead, it simply relied upon the presumptive legitimacy that it normally gives Army diagnoses when considering a challenge like that of . It appears to the court to have been a foregone conclusion that any post- separation evidence that presented was inadequate to rebut the presumption of the regularity of the Army’s procedures. The court can only conclude, then, that the ABCMR committed prejudicial error in its processing of application to it because it failed to consider the inadequacy of the diagnostic procedures that the Army used in case. (2) In so holding, the Court noted that the “ABCMR must be guided by its statutory power to ‘correct any military record’ if, given the Army’s apparent improper diagnostic procedures in this case and any other facts and decisions at which the ABCMR arrives, it ‘considers such action’ necessary to correct an error or remove an injustice.” Id. (citing 10 U.S.C. § 1552). (3) Here, the ABCMR should not rely on or defer to Dr. opinion that the applicant met retention standards because that opinion was based on the Army’s failure to follow its own regulations and procedures. First, Dr. recommendation of a Chapter 5-17 administrative discharge was based on the faulty assumption that social worker single diagnosis of an adjustment disorder was proper and consistent with the Army’s own regulations. As discussed above, it was not. For this reason alone, the Army cannot simply rely on or defer to Dr. discharge recommendation. (4) Second, Dr. discharge recommendation cannot be squared with the fact that the Army is required to refer service members like the applicant into DES for certain mood, anxiety, or dissociative disorders, including PTSD, when (a) the service member’s symptoms necessitate limitations of duty, duty in a protected environment, and/or interfere with effective military performance; (b) the service member’s medical fitness for return to duty is questionable, problematical, or controversial; or (c) when the service member’s medical condition or physical defect is progressive in nature and expectations for reasonable recovery cannot be established. AR 40-501 3-32; 3-33; AR 40-400 § 7-5(b)(2)(3). Further, it is improper for Army medical personal to wait to initiate a DES referral for a soldier manifesting PTSD symptom until that soldier is being processed for a non-disability retirement such as an adjustment disorder. See AR 40-501 3-3(d) (“Physicians who identify Soldiers with medical conditions listed in this chapter should initiate an MEB at the time of identification” and “should not defer initiating the MEB until the Soldier is being processed for non-disability retirement.”) (5) As the record evidence makes clear, the applicant’s PTSD was characterized by persistent and recurrent PTSD symptoms that were progressive in nature, resulted in limitations of his duties, and materially interfered with his effective military performance. For example: * on 19 March 2007, an Army psychiatrist, Commander M.D., diagnosed the applicant with PTSD and recommended that, “To avoid further worsening of his already severe PTSD, and due to concerns about his mission performance (he reports a history of freezing), this soldier should not participate in missions for the foreseeable future.” (TJN 000012-13) (emphasis added) * on 20 March 2007, Dr. limited the applicant’s duties to “[n]o outside-the- wire missions or duty that will involve a significant risk of direct exposure to trauma” due to his “battle related” PTSD. (TJN 000020) * on 23 March 2007, Dr. again released the applicant with a duty limitation of “no outside-the-wire missions” due to his “battle related” PTSD. (TJN 000021-22) * on 28 March 2007, Dr. released the applicant with “Work/Duty Limitations ... as per Division Mental Health” due to his “battle related” PTSD. (TJN 000028) * on 31 March 2007, given that the applicant’s PTSD symptoms were “largely unchanged,” Dr. again released the applicant with “Work/Duty Limitations” due to his “battle related PTSD,” which was based in part on a recommendation from the applicant’s Captain, CPT (TJN 000029-30) (6) Indeed, the Army discharged the applicant precisely because his symptoms, which were caused by his PTSD, were getting worse and caused his return to duty to become questionable, problematical, and controversial because they were not reasonably expected to resolve in the immediate future. See (TJN 000042) (the applicant’s commanding officer stating that the applicant has many psychological and personal issues which prevent him from serving as a part of the Army team); (TJN 000043) (Dr. stating that the applicant’s symptoms were “related in part to his previous combat experiences [and] despite attempts at treatment, the soldier’s condition has worsened, and I do not expect him to make any meaningful recovery in the immediate future ... It is unlikely that efforts to rehabilitate this individual into a satisfactory member of the service would be successful”). (7) Under the proper regulatory standard, the Army had an obligation to refer the applicant to a MEB immediately upon determining that his PTSD symptoms necessitated limited duty and/or interfered with his effective military performance. The Army failed to do so in March of 2007 and after each of the subsequent twenty-plus diagnoses of PTSD. Had the Army followed its own procedures and properly referred the applicant into DES, it is unquestionable that they would have determined that he failed retention standards and was more than 30% disabled and unfit for further military service due to his PTSD and TBI. Indeed, not five months after his discharge, the VA evaluated the applicant’s PTSD as 100% disabling effective 10 July 2008 (one day after his discharge). See (TJN 000075-79). (8) Because the Army failed to follow proper diagnostic procedures, the ABCMR cannot simply rely on or defer to Dr. discharge recommendation. Instead, the ABCMR must consider how the Army’s failures impacted its resolution of the applicant’s claim. See at *11. When it does so, the manifest weight of the evidence dictates only one result – the applicant’s military records must be corrected to show he was medically retired for PTSD. n. Counsel argues the Kurta memo compels the liberal consideration of the applicant’s proffered evidence and the correction of the applicant’s medical records. (1) The ABCMR is bound by guidance from the Department of Defense, including Memoranda for Secretaries of Military Departments, respectively dated 3 September 2014 (the Hagel Memo), 24 February 2016 (the Carson Memo), and 25 August 2017 (the Kurta Memo).The Kurta Memo applies to any petition seeking discharge relief including revisions to the “characterization, narrative reason, separation code, and re-enlistment code” and requires the ABCMR to give “liberal consideration” to veterans seeking “discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD [and] TBI.” Kurta Memo, 3, 25-25; see also 10 U.S.C. 1552(h) (requiring the ABCMR to review veteran discharge claims based on PTSD and/or TBI “with liberal consideration to the claimant that post-traumatic stress disorder or traumatic brain injury potentially contributed to the circumstances resulting in the discharge or dismissal or to the original characterization of the claimant’s discharge or dismissal”) (emphasis added). This “liberal consideration” must be given to all evidence, including but not limited to civilian medical opinions and the award of VA disability benefits. Kurta Memo, at 9, 13, 14; see also 10 U.S.C. 1552(h). The Kurta memo sets forth several non-exhaustive concepts of “liberal consideration” as used in the guidance. See Kurta Memo, at 26. (2) Pursuant to the Kurta Memo, “[t]he veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigated the discharge.” Id. at 7. When the record contains conflicting evidence as to the veteran’s condition, the Kurta Memo requires the ABCMR to liberally construe the evidence the evidence as supporting the diagnosis claimed by the veteran. Id. at 10. When the ABCMR is reviewing a discharge upgrade claim “involving diagnosed, undiagnosed, or misdiagnosed TBI or mental health conditions, such as PTSD,” the Kurta Memo forbids the ABCMR from “condition[ing] relief on the existence of evidence that would be unreasonable or unlikely under the specific circumstances of the case.” Id. at 26(f). (3) Here, ABCMR must give liberal consideration due to the applicant’s proffered evidence establishing that PTSD is the controlling diagnosis for his mental health condition. Applying this standard, there is no question that the applicant was suffering from PTSD and the effects of a TBI (not an adjustment disorder) at the time of his discharge, that his PTSD and TBI were caused by his military service, and that his PTSD and TBI resulted in his discharge. The applicant’s records should therefore be corrected to reflect a medical retirement because it is unlawful to administratively separate a veteran for symptoms of PTSD/TBI under AR 635-200, 5-17. o. Counsel states the ABCMR must give liberal consideration to the opinions of the applicant’s treaters who repeatedly diagnosed him with PTSD and TBI. (1) The ABCMR must give liberal consideration to the opinions of the applicant’s treaters, Kurta Memo, 9, 13, who repeatedly diagnosed the applicant with PTSD and a TBI, both during his time in the Army and afterwards. See, e.g., (TJN 000013; TJN 000015; TJN 000025; TJN 000027-30; TJN 000034; TJN 000037). And such treaters’ opinions unequivocally demonstrate that he suffered from (and still suffers from) battle- related PTSD and post-concussion syndrome from his TBI and was unfit for service at the time of his discharge. (2) The applicant’s records reflect that on 19 March 2007, he was initially diagnosed with battle-related PTSD, with an onset date of 17 October 2006. (TJN 000013) (“This soldier clearly meets criteria for post-traumatic stress disorder.”) After this initial PTSD diagnosis, he was diagnosed with PTSD by various treaters over twenty times between March 2007 and May 2008. (TJN 000004-5). The records reflecting these diagnoses are also replete with evidence of his debilitating symptoms, which include insomnia, frequent nightmares, flashbacks, intrusive thoughts, freezing, decreased appetite with weight loss, hypervigilance, increased startle, irritability, and avoidance. See (TJN 000004-06; 12-13; 20-22; 28-30; Exhibit B, Applicant Declaration, at 9-12). Within four months of his discharge, a civilian psychologist—Dr. diagnosed the applicant with “PTSD with features of depression and panic attacks.” (TJN 000072). Dr. further remarked that the applicant’s “changes in psychosocial functioning,” including “his family role functioning, physical health, social and interpersonal relationships, recreation and leisurely pursuits, impaired concentration making it impossible for him to attend college as he hoped,” were directly related to his PTSD. Id. Dr. diagnosis was confirmed in another evaluation by Dr. in May 2014, who diagnosed the applicant with active PTSD that was contributing to his “[t]otal occupational and social impairment.” (TJN 000099-000100). (3) The applicant’s records further reflect that he was diagnosed with post- concussion syndrome from his TBI, a direct result of his history of blast exposures, prior to his discharge. (TJN 000039). In an evaluation record from the following day, Dr. stated that the applicant not only met the “criteria for MTBI,” but also that it was “very concerning” that he could not remember his previous neurological evaluation. (TJN 000040). Dr. evaluation on 21 May 2014 confirms the applicant’s TBI diagnosis, while also crucially noting: It is not possible to differentiate what symptoms indicated on the reviewed TBI Exam are attributable to the TBI or PTSD diagnosis without speculation. The applicant’s complaints of anxiety, depression, difficulty concentrating, mild memory loss, and problems with his temper, can be due to either PTSD or the residuals of TBI. The only symptom on the TBI Exam that is likely primarily due to the TBI is his complaint of posttraumatic headaches. (TJN 000100) (emphasis added). Based on these symptoms, the applicant was found to have “[t]otal occupational and social impairment.” Id. Tellingly, these are the same exact symptoms that Dr. felt at the time of discharge were “related in part to [the applicant’s] previous combat experiences,” “ha[d] worsened” and were continually interfering with his ability to perform his duties such that it was “unlikely that efforts to rehabilitate this individual into a satisfactory member of the service would be successful.” (TJN 000043). (4) Nevertheless, the Army inexplicably determined that the applicant was unfit to serve because of combat-related symptoms, yet simultaneously maintained that he met retention standards. Id. This conclusion is irreconcilable. Even if the latter finding was supported by the record (which it is not) and this evaluation was not internally inconsistent (which it is), the applicant would not (and could not) have been discharged under AR 635-200, 5-17. The only combat-related conditions with which he was diagnosed was PTSD, TBI, and related depression and anxiety. It was these conditions and symptoms from which the evaluator did not expect the applicant to make “any meaningful recovery.” See (TJN 000043). (5) Any consideration of the opinions of the applicant’s treaters—let alone a liberal consideration—leads to the conclusion that he was suffering from PTSD and the effects of a TBI at the time of his discharge and was unfit to serve as a result of those disabilities. Accordingly, based on the treaters’ opinions alone, the applicant’s records should be corrected to reflect a medical retirement. p. Counsel states the ABCMR must give liberal consideration to the applicant’s VA disability rating finding him 100% disabled from PTSD. (1) The ABCMR must also give liberal consideration to the applicant’s VA disability evaluation, which found him 100 percent disabled from his battled-induced PTSD. (TJN 000075-97; Exhibit D, Applicant’s Second Supplemental Declaration, at 3-8; Exhibit E, Veteran Affairs Rating Decision; Exhibit F, Veteran Affairs Benefit Summary); Kurta Memo, 14; the ABCMR adopted an advisory opinion that concluded a medical retirement was not warranted where the veteran had been found fit for duty at the time of separation, but the veteran was subsequently assigned a 60 percent disability rating for his disabilities by the VA. 205 Ct. Cl. At 71-72. The Court of Federal Claims found that the ABCMR’s decision was erroneous and held that the advisory opinion’s liberal reliance on the Army’s determination of fitness for duty was improper where the opposing evidence of compensable disability (i.e., the VA’s disability rating at 60 percent) rendered the Army’s evidence of fitness “less than substantial on the record as a whole.” Id. at 73 (quoting (2) Here, it is undisputed that the applicant was determined to be unfit for duty at the time of discharge. (TJN 000043). By the very nature of being separated under AR 635-200 5-17, the Army had to find that the applicant’s ability to perform military duties was significantly impaired. It is also undisputed that he began seeking treatment at the VA only a few months after his discharge, that he was assigned a 100 percent VA service-connected disability rating for his PTSD, and that he was subsequently assigned a 100 percent VA service-connected disability rating for his TBI. (TJN 000075- 97); Exhibit D, Applicant Second Supplemental Declaration, at 3-8; Exhibit E, VA Rating Decision; Exhibit F, VA Benefit Summary). Under the Kurta Memo and Jordan, the ABCMR must give liberal consideration to the applicant’s VA disability evaluation. Such consideration of the VA disability evaluation leads to the conclusion that he was suffering from PTSD at the time of his discharge. Accordingly, his records should be corrected to reflect that he was medically retired for his debilitating PTSD. q. Counsel states the ABCMR must give liberal consideration to the applicant’s statement addressing his PTSD-related symptoms and PTSD diagnoses. (1) The ABCMR must also give liberal consideration to the applicant’s sworn statement, Kurta Memo, 7, which outlines the various traumatic events he experienced while deployed and the debilitating impact those events had on him. See generally (Exhibit B, Applicant Declaration; Exhibit C, Applicant First Supplemental Declaration; Exhibit D, Applicant Second Supplemental Declaration). Indeed, according to the Kurta Memo, the applicant’s “testimony alone, oral or written, may establish the existence” of, and support discharge for, his PTSD. Kurta Memo, at 7. (2) The applicant has provided multiple sworn statements in support this Petition, which outline the various traumatic events that he experienced while deployed and the debilitating impact those events had on his attitude, decision making, outlook on the future, and his ability to perform his military duties. (Exhibit B, Applicant Declaration; Exhibit C, Applicant First Supplemental Declaration; Exhibit D, Applicant Second Supplemental Declaration). Among other things, the applicant’s sworn testimony establishes that: * prior to experiencing multiple, battle-related traumas—including witnessing several of his friends die right in front of him—he was a very happy and social person (Exhibit B, Applicant Declaration, at 4-9) * immediately following these traumatic events, he began suffering from the debilitating symptoms of PTSD on a daily basis, including chronic nightmares, panic attacks, insomnia, hypervigilance, irritability, and avoidance—all symptoms that he still experiences to this day (Exhibit B, Applicant Declaration, at 4-21; Exhibit C, Applicant First Supplemental Declaration, at 5-11; Exhibit D, Applicant Second Supplemental Declaration, at 3-8) * despite substantial treatment, he is still unable to tolerate social situations and crowds, loud noises, and the smell of burning metal because such circumstances often trigger his PTSD symptoms, and he no longer work as a civilian (Exhibit B, Applicant Declaration, at 4-21; Exhibit C, Applicant First Supplemental Declaration, at 5-11; Exhibit D, Applicant Second Supplemental Declaration, at 3-8) These statements, on their own, warrant a finding that he should have been medically retired for his debilitating, service-related PTSD. Kurta Memo, 7. Accordingly, the applicant’s records should be corrected to reflect a medical retirement for PTSD. r. Counsel states the 2009 version of AR 635-200, chapter 5-17, and the current version of AR 635-200, chapter 5-14 must be considered because they were drafted to correct the errors and injustices that are present in the applicant’s case. (1) Congress has authorized the Secretary of the Army, acting through the ABCMR, to correct military records like the applicant’s when it is “necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(1). Additionally, the Kurta Memo specifically mandates that “liberal consideration” includes the following concept: Service members diagnosed with mental health conditions, including PTSD; TBI; or who reported sexual assault or sexual harassment receive heightened screening today to ensure the causal relationship of possible symptoms and discharge basis fully considered, and characterization of service is appropriate. Veterans discharged under prior procedures, or before verifiable diagnosis, may not have suffered an error because the separation authority was unaware of their condition or experience at the time of discharge. However, when compared to similarly situated individuals under today’s standards, they may be a victim of injustice because commanders fuller informed of such conditions and causal relationships today may opt for a less prejudicial discharge to ensure the veteran retains certain benefits, such as medical care. Kurta Memo 26(j) (emphasis added); see also id. at 10 (requiring the ABCMR to liberally construe the evidence as supporting the diagnosis claimed by the veteran, including PTSD, when the record contains conflicting evidence as to the veteran’s condition). (2) The applicant was discharged on 9 July 2008. (TJN 000066). At that time, the 6 June 2005 version of AR 635-200, chapter 5-17 – the Army regulation that the applicant was separated under – did not have language requiring the medical examiner to consider whether PTSD, TBI, and/or other comorbid mental illness may be significant contributing factors to the diagnosis of a condition under chapter 5-17 of AR 635-200. The following year, AR 635-200, Chapter 5-17 was amended to add the following language: In the case of Soldiers who are, or have been, deployed to an area designated as imminent danger pay area, the diagnosis of a mental condition not amounting to a disability will be reviewed by the installation Military Treatment Facility (MTF) Chief of Behavioral Health, or the equivalent, and confirmed by the Director, Proponency of Behavioral Health, Office of The Surgeon General. Medical review of the personality disorder diagnosis will consider whether PTSD, Traumatic Brain Injury (TBI), and/or other comorbid mental illness may be significant contributing factors to the diagnosis. If PTSD, TBI, and or other comorbid mental illness are significant contributing factors to a mental health diagnosis, the Soldier will not be processed for separation under this paragraph but will be evaluated under the physical disability system in accordance with AR 635-40. AR 635-200, § 5-17(9) – 17 December 2009 (emphasis added). These same requirements can be found in the current applicable chapter of AR-635-200 for separating a soldier for adjustment disorder. See AR 635-200, § 5-14(c) & (d)(1) – 28 June 2021. (3) It would be manifestly unjust for a combat veteran like the applicant not to receive the benefit of the 2009 version of Chapter 5-17 and the current version of Chapter 5-14 just because he was discharged shortly before the regulations were amended. Indeed, his case would seem to be the very reason why Chapter 5-17 was amended in 2009, as his case fits squarely within the situation contemplated by the 2009 amendment, as well as the later amendments to Chapter 5-14. Importantly, the Kurta Memo not only allows the ABCMR to consider the 2009 version of Chapter 5-17 and the current version of Chapter 5-14, but it also requires the ABCMR to give liberal consideration to discharged veterans such as the applicant who are victims of injustice because “similarly situated individuals under today’s standards” would have received a more favorable discharge for PTSD or TBI “to ensure the veteran retains certain benefits, such as medical care.” Kurta Memo 26(j); see also id. at 10. This is the exact situation here. (4) As discussed at length above, the applicant contends that he did not have an adjustment disorder and that he suffered an error under the Army procedures in place at the time of his discharge. However, even if the ABCMR disagrees, it is indisputable that the applicant could not have been discharged for an adjustment disorder under the 2009 version of Chapter 5-17 and current version of Chapter 5-14 because the manifest weight of the evidence demonstrates that (1) The applicant’s severe battle-related PTSD and TBI were significant contributing factors to his mental health diagnosis, and (2) The applicant’s mental health diagnosis was never reviewed by the installation MTF Chief of Behavioral Health, or the equivalent, or confirmed by the Director, Proponency of Behavioral Health, Office of The Surgeon General. See supra;16 see also (Exhibit L, Official Transcript of Hearing on 8/9/22, at pp. 12:18-14:6; 42:13-15) (Judge Meyers stating that he believes the applicant “would not have been able to be separated the way he was separated” under the 2009 version of Chapter 5-17). (5) Denying the applicant the same relief that “similarly situated individuals” would receive under the 2009 version of Chapter 5-17 and current version of Chapter 5-14 would result in the very “injustice” the Department of Defense intended to cure when it issued the Kurta Memo and directed the ABCMR to give cases like the applicant’s “liberal consideration.” Kurta Memo, 26(j). The ABCMR should now exercise its authority under 10 U.S.C. § 1552(a)(1) and “remove [this] injustice” by correcting the applicant’s medical records to reflect that he was medically retired for his debilitating, service-related PTSD. 10 U.S.C. § 1552(a)(1). s. In conclusion, counsel states for the foregoing reasons, the applicant respectfully requests that the ABCMR correct his military records to reflect that he was placed on the Permanent Disability Retired List due to his debilitating, service-related PTSD. 4. The applicant states in Exhibits B (Applicant’s declaration), Exhibit C (Supplemental declaration of the applicant), and Exhibit D (Second supplemental declaration of the applicant): a. He enlisted in the U.S. Army on 17 August 2005 and served as an infantryman until 9 July 2008. He was deployed to Iraq from 4 August 2006 through 1 October 2007. He was assigned to Charlie Company 1st Battalion 26th Infantry Regiment, 2nd platoon. While in Iraq, he witnessed the execution of his squad leader by an enemy sniper. In the same week, on 22 October 2006, the Humvee he was riding in hit an improvised explosive device (IED). The explosion knocked him unconsciousness and he took shrapnel to his face, and upper and lower back. When he woke up, he was covered in blood and flesh from the interpreter who was sitting next to him and who was disintegrated by the explosion. His close friend and truck commander also died in the attack after his body was split into two during the explosion. His driver and gunner were also severely wounded in the attack. He also witnessed three members of the Military Police burn alive after their truck hit an IED. b. By the end of his tour in Iraq, all but two members of his squad had died. His platoon suffered the most casualties in his company and was eventually disbanded because it was thought to be a "bad omen." Prior to his tour in Iraq, he was a very happy and relatively social person. But after the Humvee explosion, he just was not himself anymore. He began having difficulty sleeping and eating. When he would fall asleep, he had frequent nightmares of all the people that he had witnessed being killed in action. He began to grow increasingly paranoid and experienced flashbacks and panic attacks, which resulted in him avoiding human contact. He was eventually unable to participate in missions because he would freeze up while in action. He tried to overcome his symptoms and sought out treatment from various U.S. Army medical personnel - they repeatedly told him that he suffered from PTSD. [TJN 000001- TJN000129]. Even though he had seen a number of different doctors and therapists, his symptoms have continued and, at times, gotten worse. Today, nearly ten years after the onset of his PTSD [TJN 000012-13], he continues to experience debilitating symptoms on a daily basis. For example, he regularly suffers from insomnia, and when he can sleep, he is plagued by chronic nightmares. He has frequent panic attacks, during which he may visibly shake, clam up, withdraw, and isolate himself. He has trouble tolerating social situations and crowds because they can trigger panic attacks and/or make him extremely irritable. c. Loud noises and certain smells, like the smell of burning metal, put him on edge, makes him sick to his stomach and completely preoccupied with his surroundings and environment, and cause him extreme anxiety. One of the most difficult aspects of his PTSD is the impact it has on his family. They mean the world to him, and he is extremely fortunate that they have supported him through his struggles with PTSD. But he is unpredictably temperamental which upsets his wife and children, and it is difficult for his children to understand his panic attacks and hypervigilance. He tries to be there for his family as much as possible, particularly on his good days, but he is most often unable to attend his children's extracurricular activities because he cannot tolerate the noises, crowds and social interactions. He also struggles to help his wife with daily errands, such as the grocery store for the same reasons. Lastly, he is often anxious about his friends and family dying and have trouble investing in new relationships because he has a sense that they will not last. There is not a day that goes by that his mind does not relive the death and destruction he witnessed and experienced in Iraq. Thankfully, there are some days when he has less difficulty coping with his thoughts and aversion to social interactions, but every day is still a struggle to get out of bed and make it through the day. d. He has reviewed the 4 May 2020 Advisory Opinion in this matter (Advisory Opinion). As the Advisory Opinion states, the VA awarded him a service-connected disability rating of 100% for his PTSD effective the day after his discharge or 9 July 2008. In 2019, he underwent another VA disability rating evaluation pursuant to which the VA determined his service-connected disability rating for PTSD should remain at 100%. Suffering from PTSD has and continues to negatively impact his life. It has materially altered his relationship with his wife and family. As the Advisory Opinion notes, during deployment he suffered from thoughts that he would die before he could make it home to see his daughter. He experienced martial problems because his PTSD made him into a different person: he was temperamental and on-edge, depressed, anxious, and exhausted from not being able to sleep. Following his diagnosis of PTSD, he was prescribed medication that either did not seem to help or would only help for a short period of time in extremely high doses. More often than not he could not bring himself to attend therapy because he did not want to relive the October 2006 IED explosion and deaths of his squad members. He became distant from his wife and was a different person to her day-to-day and even hour to hour. His wife was not sure that she could live with him, and he was afraid that his PTSD would prevent him from being a husband and father. He and his wife went through marriage counseling so that she could better understand his PTSD and they could both learn how to cope with and constructively address how it impacted their relationship. Throughout the duration of his deployment, he remained preoccupied with getting back to his family. he was afraid that his PTSD would cause him to lose them. e. His PTSD also interfered with his ability to perform his duties as an infantryman before and at the time of discharge. Because of the PSTD he had terrible nightmares that prevented him from sleeping at night. He would be so exhausted during the day that he could not focus. On numerous occasions he overslept after extreme sleep deprivation, which caused him to be late to formation and miss physical training. His PTSD caused him to be so exhausted, anxious, depressed and on edge that he just was not able to perform as a soldier anymore. He is fortunate that through significant counseling and effort on himself and his family’s part, he and his wife remain married and raising their wonderful children. But he continues to struggle with being a husband and parent due to his PTSD symptoms, including panic attacks, hypervigilance, depression, and anxiety. He is also fortunate that he has managed to stay employed to support his family. As the Advisory Opinion notes, he is a fuel systems mechanic at Hill Air Force Base. As a condition of employment, he is subjected to an annual screening to confirm that he is physically capable of performing his job. The screening, which lasts a few minutes, involves an individual asking him a handful of standard questions about any changes to his physical health, like whether he developed a heart condition or asthma, and fitting him for a respirator. The screening does not include a clinical physical examination or evaluation of his PTSD, though he always voluntarily discloses that he suffers from depression as a result of his PTSD. His work at Hill Air Force Base is entirely unrelated to his role, duties, and responsibilities with the Army before and at the time of his discharge. While at work he self-isolates and spends a significant amount of time alone in fuel tanks. Due to his PTSD, he struggles to interact with and get along with others at work (and generally). Being alone is the only way he can manage his PTSD symptoms at work. Working has been and remains a daily struggle. f. He is submitting this second supplemental declaration in connection with his Petition on Remand before the ABCMR. In late 2020, he was evaluated at the VA because he was continuing to struggle with his service-connected PTSD and complications with his service-connected TBI. He was continuing to experience chronic panic attacks, hypervigilance, depression, and anxiety as a result of his PTSD and, as a result, was struggling to perform his duties at Hill Air Force Base. It was all he could do to bring himself to go into work on most days, and some days he could not even do that. He was having recurrent nightmares and only sleeping 2-3 hours a night, so he was exhausted on top of everything else. He could not focus or be productive. Additionally, he was self-isolating at work more and more because of his anxiety and hypervigilance. Interacting with co-workers made both almost unmanageable so he was spending nearly all of his days alone in fuel tanks. Being alone was the only way he could make it through the workdays and have any chance of getting work done. He was experiencing these symptoms despite taking medication for his PTSD. Additionally, as a result of his TBI, he was experiencing vertigo, chronic migraines, and memory loss. On 14 January 2021, the VA renewed his PTSD and TBI rating of 100% disabling to include vertigo. Unfortunately, by that time, performing his duties at work became impossible due to his PTSD and TBI symptoms. He resigned from Hill Air Force Base effective 25 January 2021. g. Since his resignation, he has continued to seek treatment for his PTSD and TBI. He has some days that are better than others, but he continues to struggle with symptoms from PTSD and TBI, including panic attacks, nightmares, anxiety, depression, hypervigilance, headaches, and memory loss. He is doing the best he can with medication and therapy to manage the symptoms so he can be there for his family, but his symptoms continue to make it challenging for him to be present for his wife and kids. 5. The applicant enlisted in the Regular Army on 17 August 2005. He held military occupational specialty 11B (Infantryman). 6. He deployed to Iraq from 4 August 2006 to 1 October 2007. 7. On 8 May 2008, the applicant's immediate commander stated in a memorandum for record that the applicant was unable to perform as a Soldier in the U.S. Army due to having a designated physical or mental condition while being assigned to Company C, 2nd Battalion, 28th Infantry Regiment. The applicant had many psychological and personal issues which prevented him from serving as a part of the Army team. The applicant was an infantryman and some, but not all, of his basic responsibilities were to: * perform duties as a Bradley fighting vehicle driver, gunner, or a fire team leader * operate both mounted and dismounted to close with and destroy the enemy * employ, operate, and maintain weapon systems and equipment * employ proper dismounted movement techniques * perform basic communication functions and operate platoon communication equipment * construct individual fighting positions * assist in the breeching of obstacles * collect and report tactical information as a member of combat or reconnaissance patrol 8. A mental status evaluation was conducted on 12 May 2008 using DA Form 3822 (Report of Mental Status Evaluation), showing the examining psychiatrist determined the applicant met medical retention standards in accordance with AR 40-501 and cleared the applicant for administrative separation under the provisions (UP) of AR 635-200, paragraph 5-17. 9. The applicant underwent a separation physical on 15 May 2008. a. DD Form 2807-1 (Report of Medical History) shows the applicant marked yes for the question “Have you ever had or do you now have” worn contact lenses or glasses, also nervous trouble of any sort (anxiety or panic attacks), frequent trouble sleeping, received counseling of any type, depression or excessive worry, been evaluated or treated for a mental condition. b. DD Form 2808 (Report of Medical Examination) shows the applicant was qualified for service. c. DD Form 2697 (Report of Medical Assessment) shows: * compared to my last medical assessment/physical examination my overall health is: worse * since your last medical assessment/physical examination, have you had any illnesses or injuries that caused you to miss duty for longer than 3 days: no * since your last medical assessment/physical examination, have you been seen by or been treated by a health care provider, admitted to a hospital, or had surgery: no * have you suffered from any injury or illness while on active duty for which you did not seek medical care: no * are you now taking any medication: no * do you have any conditions which currently limit your ability to work in your primary military specialty or require geographic or assignment limitations: unanswered * do you have any dental problems: no * do you have any other questions or concern about your health: no * at the present time, do you intend to seek department of Veterans Affairs (VA) disability: uncertain 10. On 3 June 2008, his immediate commander notified him that he was initiating action to separate him for other designated physical or mental conditions UP of AR 635- 200, paragraph 5-17. The reason for the proposed action was that the applicant was evaluated at the Schweinfurt Behavioral Health Clinic and found to have an adjustment disorder with anxiety and depressed mood. His condition would have worsened if he remained in the military. The applicant acknowledged receipt of the foregoing notice from his commander that informed him of the basis for the contemplated action to separate him under AR 635-200, Chapter 5-17, and of the rights available to him. 11. On 3 June 2008, the applicant consulted with legal counsel and was advised of the contemplated action to separate him for personality disorder UP of AR 635-200, paragraph 5-17, and its effects; the rights available to him; and the effect of any action taken by him in waiving his rights. He did not submit a statement in his own behalf. He declined counsel. He understood: * if he had less than 6 years of total Active and Reserve service at the time of separation, he was not entitled to have his case heard by an administrative separation board unless he was being considered for separation under other than honorable conditions * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions * as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he may expect to encounter substantial prejudice in civilian life 12. On 3 and 6 June 2008, his immediate and intermediate commanders recommended separation prior to his expiration term of service UP of AR 635-200, paragraph 5-17, for other designed physical or mental conditions. They recommended characterization of his service as honorable. 13. On 25 June 2008, the separation authority directed his discharge UP of AR 635- 200, paragraph 5-17, and characterization of his service as honorable. 14. On 9 July 2008, he was honorably discharged. His DD Form 214 shows he completed 2 years, 10 months, and 23 days of net active service this period. His DD Form 214 also shows in: * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – * Iraq Campaign Medal * Army Commendation Medal * Purple Heart * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Overseas Service Ribbon (2nd Award) * Combat Infantryman Badge * Item 25 (Separation Authority) – Army Regulation 635-200, paragraph 5-17 * Item 26 (Separation Code) – JFV * Item 28 (Narrative Reason for Separation) – Condition, not a Disability 15. During the processing of the applicant’s previous case (Exhibit H), (ABCMR Docket Number AR20170017846), a medical advisory opinion review (Exhibit G) of this case was requested for: Medical condition(s) not considered during the separation physical process. Specifically: a. Does available record reasonably support PTSD, or another behavioral health condition, existed at the time of the applicant’s military service? b. Did these conditions fail medical retention standards in accordance with AR 40-501, warranting a separation through medical channels? c. Is this condition(s) a mitigating factor in the misconduct that resulted in the applicant’s discharge from the military? d. Any additional information deemed appropriate. 16. The advisor indicated: a. The applicant entered the Army on 17 August 2005. On 9 July 2008, he was discharged from the Army IAW AR 635-200, Chapter 5-17, Condition, not a disability with an Honorable characterization of service. The applicant is applying to Army Board for Correction of Military Records (ABCMR) requesting his discharged be changed to medical retirement due to PTSD and receive retired back pay. He asserts he should have been referred for a Medical Evaluation Board instead of being administratively separated. b. The Army Review Boards Agency (ARBA) Psychologist was asked to review this case. Documentation reviewed includes the applicant’s ABCMR application, his military records, the Armed Forces Health Longitudinal Technology Application (AHLTA) electronic military medical record, the Health Artifacts Image Management Solutions (HAIMS), and the electronic VA medical record (JLV). c. Review of the electronic VA medical record indicates the applicant has a service- connected disability rating of 100% for PTSD and 10% for headaches. d. Review of applicant’s electronic military and medical records indicates he entered the Army on 17 August 2005 as an 11B Infantryman. He deployed to Iraq on 4 August 2006. On 19 March 2007, he self-referred to behavioral health and was diagnosed with Acute PTSD. He was started on Prozac with recommendations to participate in treatment with the combat stress control (CSC) detachment. CSC programs typically consist of 3 days of individual and group treatment to reconstitute soldiers during deployment. Based on the recommendations of his provider, the applicant was reassigned to the tactical operations center (TOC) instead of going out of the wire for missions. e. On 4 April 2007, his provider noted that the applicant had been cleared to return to full duty as his sleep had improved and he has had sufficient rest. Provider noted that the applicant was upset because he has concerns about making it home to his daughter. The applicant stated he “knows his TTPs (tactics, techniques, and procedures) and appears confident that he can fulfill his mission.” f. On 1 October 2007, he redeployed from Iraq. On 4 October 2007, he completed his reintegration screening which include discussion of combat stress and anticipated adjustment issues to returning home from deployment. On 10 October 2007, he was evaluated for post concussive symptoms due to reported blast exposure during deployment. The group appointment focused on psychoeducation regarding TBI symptoms and the standard screening process used. g. On 3 March 2008, he self-referred to social work due to continued PTSD symptoms and partner relational difficulties as he and his wife were living together for the first time. He and his wife agreed to start marital counseling. On 6 March 2008, he was evaluated for medication to address his PTSD symptoms and insomnia. He reports nightmares and irritability. He reports continued conflict with his wife and hates his unit. He is pursuing early discharge to attend college or will separate at his ETS date in December. h. The psychiatrist noted PTSD with strong depressive component. He reported the applicant “is functional at work but would likely worsen if deployed.” He was prescribed Zoloft for PTSD symptoms and Trazadone and Prazosin for insomnia and nightmares. On 11 March 2008, he reports concerns that he may not get the college drop and if he waits, he will get held under stop-loss. Provider noted “he continues to dwell on how much he hates his unit, his job, the Army and how it has ruined his life and marriage.” i. On 2 April 2008, he informs his provider there is no improvement in sleep and he just found out the unit is not approving college drop discharges. On 15 April 2008, he reported his wife and child went back to the states and are not planning to return. The applicant stated he continues to be frustrated being in the Army and has thoughts of just leaving but knows this will not accomplish his goals. On 30 April 2008, he reported discontinuing his medications because he didn’t think they were helping. On 12 May 2008, he agreed to try new medications but is distressed about getting back to his wife in the states. On 9 July 2008, he was discharged from the Army. j. On 17 September 2014, he completed a pre-employment physical and denied any conditions that would prohibit his civil service work as a fuel systems mechanic. He completed annual physical exams for employment each year from 2014-2020. As of his evaluation on 4 February 2020, he to be found medically qualified for his employment as a fuel system mechanic at Hill Air Force Base and is trying to be transferred to a new position as a C-130 fuels systems mechanic. The provider noted the applicant’s PTSD symptoms are currently stable with sleep disturbances due to sleep apnea (uses CPAP machine). k. In regard to the questions outlined in paragraph #15 of this ROP or paragraph #2 of the advisory: (a) In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017, Clarifying Guidance there is documentation to support a behavioral health condition at the time of his discharge. (b) The applicant has significant symptoms and was treated while deployed. After returning from deployment in October 2007, he completed the required post deployment screenings but did not receive any behavioral health treatment from October 2007 to March 2008. He self-discontinued his psychotropic medications within 4 weeks without reaching a therapeutic dose. l. He started new medications in April 2008. While he did discuss the possibility of an MEB with his provider in May 2008, he had only been on his new medications for 5 weeks. He was only in therapy for a 9-week period. There was no report of inability to perform his duties at work but rather he had no desire to continue to serve in the military. There were significant marital issues but as expected given he and his wife were living together for the first time and she wanted to return to the States. While he has a service-connected disability rating of 100% for PTSD, he has been employed as a GS civilian fuels systems mechanic for the past 6 years. In addition, per his most recent annual physical his PTSD symptoms are under treatment and currently stable. At the time of his discharge, his treating provider evaluated him and determined he met retention standards at the time of his discharge. (d) Referral to the disability evaluation system is not warranted. 17. On 5 May 2020, the medical advisory opinion was provided to the applicant and counsel and given the opportunity to submit comments. Counsel responded and reiterated that the applicant should have been processed through medical channels and retired due to PTSD. A copy of the complete counsel's response to the medical advisory was provided to the Board for their review and consideration. 18. The Board considered his application and determined that after reviewing the application and all supporting documents, the Board found the requested relief is not warranted. a. The Board concurred with the Army Review Boards Agency Psychologist's assessment that the applicant's referral to the DES is not warranted. The Board noted the applicant's frequent contact with behavioral health providers during his active-duty service and noted that none of those providers recommended he be referred to a Medical Evaluation Board. His in-service diagnoses of PTSD are noted, but the Board also noted the multiple situational stressors described in the advisory opinion (i.e., marital stress, denial of a request for early release to attend school, and general dissatisfaction with the Army. The Board acknowledges counsel's contentions and the applicant's post-service medical history but found neither to be compelling to a degree that would lead the Board to question the judgment of the provider who, at the time of his discharge, evaluated him and determined he met retention standards. b. By a preponderance of the evidence, the Board determined the administrative discharge the applicant received was not in error or unjust. 19. The also applicant provided: a. Exhibit A: 128 pages of medical records in support of his claim. b. Exhibit E: DVA rating decision, 14 January 2021, which shows: * service connection for tinnitus is granted with an evaluation of 10 percent effective 5 November 2020 * evaluation of PTSD with TBI is now being evaluated to include vertigo (TBI), which is currently 100 percent disabling, is continued c. Exhibit F: Summary of benefits letter, 1 December 2021, which shows the applicant has one or more service-connected disabilities which a combined service- connected evaluation was rated at 100% considered totally and permanently disabled effective 28 October 2020. d. Exhibit L: 55 Pages of condensed transcript with word index from United States Court of Federal Claims, 9 August 2022. 20. Based on the applicant's contentions, and the medical records provided, the ARBA medical staff provided an advisory opinion on 24 January 2023. 21. The advisory opinion states: a. References: * Diagnostic and Statistical Manual of Mental Disorders-IV Edition TR * AR 40-501, Standards of Medical Fitness, 14 December 2007 * AR 635-200, Active Duty Enlisted Administrative Separations, 6 June 2005 * Memorandum, Secretary of Defense, 3 Sep 2014, Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post-Traumatic Stress Disorder * Army Directive 2014-28, Requests to Upgrade Discharge by Veterans Claiming Post-Traumatic Stress Disorder, 3 Nov 2014 b. The case comes before the Board on remand from the United States Court of Federal Claims (The Court). The Court requested remand to the ABCMR and noted it "consider all the claims, evidence, and arguments Plaintiff raises in his new brief and any subsequent pleadings, address all nonfrivolous arguments raised in Plaintiff’s new brief and any subsequent pleadings, and if it concludes that an argument is frivolous, the ABCMR should state why the argument is frivolous, identify the governing statutes and regulations applicable to Plaintiff’s claims, and assess Plaintiff’s claims under the applicable statutes and regulations, explain whether, in the interests of justice a later version of a regulation that was not in effect at the time of Plaintiff’s discharge should be applied to Plaintiff’s claims, provide a reasoned explanation for its conclusions”. c. The applicant, through counsel, is requesting reconsideration of his previous request for physical disability retirement. He contends his separation was related to PTSD. d. 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 enlisted into the Regular Army on 17 August 2005. (2) He served in Iraq from 4 August 2006 to 1 October 2007. (3) On or about 20 March 2007 he was diagnosed with Acute PTSD related to combat exposure. (4) On 5 October 2007 he was diagnosed with Adjustment Disorder with anxiety and depressed mood. Records show the applicant continued to be diagnosed with and treated for PTSD subsequent to the Adjustment Disorder diagnosis. (5) On 8 May 2008, the applicant's immediate commander stated in a memorandum for record that the applicant was unable to perform as a Soldier in the U.S. Army due to having a designated physical or mental condition while being assigned to Company C, 2nd Battalion, 28th Infantry Regiment. (6) A mental status evaluation was conducted on 12 May 2008 using DA Form 3822 (Report of Mental Status Evaluation). The examining psychiatrist determined the applicant met medical retention standards in accordance with AR 40-501 and cleared the applicant for administrative separation under the provisions of AR 635-200, paragraph 5-17. (7) The applicant was discharged on 9 July 2008, under provisions of AR 635- 200, Chapter 5-17, with a characterization of service of honorable. e. Documentation reviewed included the applicant’s ABCMR application, his military records, the Armed Forces Health Longitudinal Technology Application (AHLTA) electronic military medical record, the Health Artifacts Image Management Solutions (HAIMS), and the electronic VA medical record (JLV). f. A review of AHLTA showed the applicant first engaged for BH-related issues, while on active duty, on 19 March 2007, while deployed to Iraq. The applicant complained of symptoms secondary to experiencing multiple traumas between 17 October 2006 and two weeks preceding the then current encounter. He was diagnosed with acute PTSD and recommended for treatment with the combat stress control (CSC) detachment. Based on the recommendations of his provider, the applicant was also reassigned to the tactical operations center (TOC) instead of going out of the wire for missions. Records suggest the applicant was placed on temporary profile between 19 March 2007 and 7 April 2007. g. On 4 April 2007, his provider noted that the applicant had been cleared to return to full duty as his sleep had improved and he has had sufficient rest. Provider noted that the applicant was upset because he had concerns about making it home to his daughter. However, he was confident he “[knew] his TTPs (tactics, techniques, and procedures) and appeared confident that he could fulfill his mission”. h. On 1 October 2007 the applicant redeployed from Iraq. On 4 October 2007 he attended an initial reintegration screening. Records show he was diagnosed by the provider with acute PTSD and Bereavement without complication. Records suggest he returned the following day for a full assessment, and upon completion of the assessment the same provider diagnosed the applicant with Post-concussion Syndrome, Adjustment Disorder with Anxiety and Depressed Mood, and Bereavement without complications. PTSD was not included as a diagnosis and the encounter documentation is void of context detailing the exclusion of PTSD as a diagnosis. It should be noted that the applicant’s PTSD Checklist (PCL) score was 61, and although the PCL is a screening tool and not a diagnostic instrument, such an elevated score and previous recent history of traumatic exposure and PTSD diagnosis is usually indicative of PTSD. On 10 October 2007, the applicant was evaluated by Neurology for post concussive symptoms due to reported blast exposure during deployment. The group appointment focused on psychoeducation regarding TBI symptoms and the standard screening process used. i. On 3 March 2008, the applicant self-referred to social work due to continued PTSD symptoms and partner relational difficulties as he and his wife were living together for the first time. He and his wife agreed to start marital counseling. On 6 March 2008, he was evaluated for medication to address his PTSD symptoms and insomnia. He reported nightmares, irritability, avoidance of crowds, feeling of detachment, exaggerated startle response, being quick tempered, thrashing and yelling in his sleep, and memory problems. The provider noted the applicant was “functional at work but would likely worsen if deployed”. The provider also noted the applicant was pursuing an early discharge to attend college, and that he intended to ETS in December if the early release was not granted. The applicant was diagnosed with PTSD at each of the above encounters. j. On 2 April 2008, the applicant informed his provider there was no improvement in sleep or work related stress, and that he was recently informed the unit was not approving college drop discharges. On 15 April 2008, he reported his wife and child went back to the states and are not planning to return. Additionally, he reported being more depressed, continued to have nightmares, and was increasingly frustrated being in the Army. On 30 April 2008, he reported discontinuing his medication because he felt it was not working. k. On 12 May 2008 he agreed to try new medication but remained distressed about getting out of the military. He reported continued nightmares, intrusive memories, insomnia, low morale, avoidance, and unease around crowds. However, his greatest current concern was his marriage. He was also adamant about getting out of Schweinfurt, as he feared he might be deployed again. The provider noted, in part, that the applicant had poor response to PTSD treatment “and now worsening due to marital collapse. Pt wants out as fast as possible to get back to his wife. While he is an MEB candidate, therapeutically he would not benefit from staying here for many more months as his wife moves on without him”. The applicant was discharged from the Army on 9 July 2008, under provision of AR 635 – 200, Chapter 5-17 l. A review of JLV showed the applicant is 100 percent service-connect for PTSD with an original effective date of 10 July 2008 and current effective date of 21 October 2020. A VA Rating Letter dated 1 December 2021 shows the applicant is considered 100 percent permanently disabled due solely to his service-connected disabilities. A VA Veteran’s Examination dated 21 November 2008, and PTSD Disability Benefits Questionnaires (DBQs) dated 21 May 2013, 11 June 2019, 28 October 2020, and 17 November 2020, showed examiners diagnosed the applicant with PTSD and deemed the diagnosis connected to trauma experienced during service. m. The applicant appears to have first engaged for BH-related treatment with the VA at the Salt Lake City, UT VA on 10 December 2013. The applicant presented to the walk-in clinic complaining of increased PTSD and Depressive symptoms. He reported a history of PTSD related to traumatic experiences endured in Iraq, as well as his military treatment history for the disorder. The applicant reported current symptoms included nightmares, flashbacks, fatigue, memory loss, irritability and anger, feeling distant and cutoff, exaggerated startle response, sleep problem, hypervigilance, depressed mood, anhedonia, depressed mood, and withdrawal and isolation. He reported a desire for PTSD specific therapy and medication management. He was diagnosed with PTSD and MDD, prescribed psychotropic medication and referred for outpatient treatment. The applicant has remained in treatment, intermittently, through 22 December 2022. n. The applicant contends, through counsel, that the Army failed to refer him into the Disability Evaluation System (DES) for evaluation, and instead administratively separated him for “fictitious” adjustment disorder. He further contends that because the Army failed to properly evaluate his PTSD, he has been denied the monthly military disability retirement income and Tricare benefits to which he and his family are entitled. o. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence in the records that the applicant had a condition or experience that likely warranted referral to MEB. The applicant was diagnosed and treated for PTSD, during military service, from on or about 19 March 2007 until on or about 12 May 2008. Between 17 March 2007 and 12 May 2008, the applicant was diagnosed with Adjustment Disorder with anxiety and depressed mood, on 5 October 2007, by the provider who had diagnosed the applicant with PTSD the previous day. Of note, during the 5 May encounter the applicant’s PCL score was 61, and although the PCL is a screening tool and not a diagnostic instrument, such an elevated score and recent history of traumatic exposure and PTSD diagnosis is usually indicative of PTSD. It should be further noted that the 5 October 2007 encounter record appears to be the only instance of an Adjustment Disorder diagnosis in the applicant military medical record. Although records suggest that the applicant did not seek BH-treatment between October 2007 and March 2008, after returning from deployment, they showed that when he did reengage for treatment he reported continued symptoms of PTSD related to combat deployment and was diagnosed with PTSD. Additionally, records show the applicant’s provider noting the applicant’s lack of symptom improvement, as in the 12 May 2008 encounter whereby the provider wrote, in part, the applicant had poor response to PTSD treatment “and now worsening due to marital collapse”. The provider went on to write, “while he is an MEB candidate, therapeutically he would not benefit from staying here for many more months as his wife moves on without him”. The fact the provider recognized the applicant as an MEB candidate is sufficient to infer the applicant’s PTSD symptoms were impacting his ability to function, and likely warranted referral for MEB. Given the above information, it is with an abundance of caution that this advisor recommend that the Board consider referring the case to DES for consideration. p. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant is 100 percent SC for PTSD and rated permanently disabled due to SC PTSD. Additionally, military records show the applicant was diagnosed and treated from combat related PTSD during service. (2) Did the condition exist or experience occur during military service? Yes. (3) Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence in the records that the applicant had a condition or experience that likely warranted referral to MEB. The applicant was diagnosed and treated for PTSD, during military service, from on or about 19 March 2007 until on or about 12 May 2008. Between 17 March 2007 and 12 May 2008, the applicant was diagnosed with Adjustment Disorder with anxiety and depressed mood, on 5 October 2007, by the provider who had diagnosed the applicant with PTSD the previous day. Of note, during the 5 May encounter the applicant’s PCL-5 score was 61, and although the PCL-5 is a screening tool and not a diagnostic instrument, such an elevated score and recent history of traumatic exposure and PTSD diagnosis is usually indicative of PTSD. It should be further noted that the 5 October 2007 encounter record appears to be the only instance of an Adjustment Disorder diagnosis in the applicant military medical record. Although records suggest that the applicant did not seek BH-treatment between October 2007 and March 2008, after returning from deployment, they show that when he did reengage for treatment he reported continued symptoms of PTSD related to combat deployment and was diagnosed with PTSD. Additionally, records show the applicant’s provider noting the applicant’s lack of symptom improvement, as in the 12 May 2008 encounter whereby the provider wrote, in part, the applicant had poor response to PTSD treatment “and now worsening due to marital collapse”. The provider went on to write, “while he is an MEB candidate, therapeutically he would not benefit from staying here for many more months as his wife moves on without him”. The fact the provider recognized the applicant as an MEB candidate is sufficient to infer the applicant’s PTSD symptoms were impacting his ability to function, and likely warranted referral for MEB. Given the above information, this advisor recommends that the Board refer the case to DES for MEB/PEB consideration. 22. On 1 February 2023, a copy of the advisory opinion was provided to the applicant and his representing Counsel and they were given an opportunity to submits comments. 23. Counsel responded on 16 February 2023 stating: a. We are in receipt of the Army Review Boards Agency’s January 24, 2023 Advisory Opinion (the “Opinion”) regarding [the applicant’s] application to the Army Board for Correction of Military Records (the “Board”) on remand from the United States Court of Federal Claims (hereinafter, the “Petition”). The Opinion rightly finds that at the time of his discharge [the applicant] was suffering from chronic PTSD that was worsening and impairing his ability to function. The Opinion also correctly finds that [the applicant] should have been referred into the Disability Evaluation System (“DES”) prior to his discharge. However, the Board need not refer [the applicant] into DES now, nearly fifteen (15) years after his discharge, as the Opinion recommends. Rather, giving liberal consideration to all evidence, the Board should conclude that [the applicant] should have been medically discharged due to his disabling PTSD and 1) correct his records to reflect that he was placed on the Permanent Disability List due to a disability rating for PTSD exceeding 30 percent; and 2) award [the applicant] payment of all benefits he is owed as a result of the correction. In the alternative, the Board should adopt the Opinion’s recommendation and refer [the applicant] to DES. b. Summary of key evidence. (1) From the onset of [the applicant’s] PTSD symptoms on October 17, 2006, to the date on which he was recommended for administrative discharge, May 12, 2008, [the applicant] was diagnosed with PTSD more than twenty times (Nov. 7, 2022 Br. on Remand (“Br.”) at 7); he was diagnosed with an adjustment disorder once (Opinion 14). That single diagnosis was issued by a provider who had diagnosed [the applicant] with PTSD the previous day. And on the date of his errant adjustment disorder diagnosis, that provider assigned [the applicant] a PCL score of 61, which is indicative of a diagnosis of PTSD, not adjustment disorder. (Opinion 14.) Between October 2007 and May 12, 2008, the date he was recommended for discharge, his PTSD symptoms continued to worsen despite medical and therapeutic intervention. (Opinion 14.) The provider who evaluated him on May 12, 2008, the day he was recommended for administrative discharge, noted that he was a MEB candidate because the severity of his PTSD and lack of response to PTSD treatment was impairing his ability to function. (Opinion 14.) He expressed concern that “therapeutically,” [the applicant] would not benefit from remaining in service. (Opinion 14.) (2) Indeed, [the applicant’s] commanding officer recognized that he was unable to “serv[e] as part of the Army team.” (Br. at 6.) His Army medical provider, Dr. stated that his PTSD symptoms were service-related and that “despite attempts at treatment, the Soldier’s condition has worsened, and I do not expect him to make any meaningful recovery in the immediate future . . . . It is unlikely that efforts to rehabilitate this individual into a satisfactory member of the service would be successful.” (Br. at 24.) The VA evaluated [the applicant’s] PTSD as 100 percent effective July 10, 2008, one day after [the applicant’s] discharge and he continues to be rated at 100 percent today. (Br. at 25.) c. The Board should correct [the applicant’s] medical records to reflect his placement on the permanent disability list. (1) In rendering its decision on [the applicant’s] Application to Correct Military Records the Board must apply the “liberal consideration” standard set forth under the Kurta Memo and 10 U.S.C. 1552(h). Applying that standard, the Board should find: (a) [The applicant] has presented more than sufficient evidence that at the time of his discharge he was suffering from service-related PTSD. (b) His PTSD was inhibiting his ability to function “as part of the Army team”. (c) He could not be rehabilitated to meet retention standards because, among other things, his provider determined that “therapeutically, he would not benefit from” remaining in the Army. (d) His PTSD resulted in his discharge. (2) This conclusion is further supported by the VA’s determination that [the applicant] is 100 percent disabled from his battle-induced PTSD. The Board is empowered to remove the injustice of [the applicant] being separated for a condition not a disability. It need not refer [the applicant] through DES to determine what the evidence already plainly demonstrates – that [the applicant’s] PTSD rendered him disabled an unfit to perform his military duties. Rather, the Board should exercise its authority to correct [the applicant’s] medical records to reflect that he was placed on the Permanent Disability Retired List due to his debilitating, service-related PTSD. d. Conclusion. Giving liberal consideration to [the applicant’s] petition, as it must, the Board should find that [the applicant] was disabled as a result of his service-related PTSD at the time of his discharge and recommend that all Department of the Army records pertaining to [the applicant] be corrected to reflect that he was placed on the Permanent Disability Retirement List. It should further award all benefits, including any back retirement pay, that [the applicant] is entitled as a result of correcting the Army’s error. 24. 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. 25. 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. 26. Title 38, Code of Federal Regulations, Part IV is the VA’s Schedule for Rating Disabilities (VASRD). 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. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is warranted. 2. After giving liberal consideration to the available evidence, the Board concluded that the applicant should have been referred to the Disability Evaluation System instead of being processed for an administrative discharge. The evidence reflects the applicant’s PTSD was incurred in the line of duty and he received ongoing treatment for PTSD during and since service. The Board further concluded that, considering the severity of the applicant’s PTSD as documented in the medical records during and immediately following service, as well as that the applicant received a service-connected disability rating of 100 percent for PTSD from the VA shortly after his discharge, the record clearly shows the condition was, in fact, unfitting for continued service as an infantryman and his retirement for permanent disability was warranted. 3. The Board considered referring the applicant to the Disability Evaluation System. However, in light of the well-documented presence of a PTSD diagnosis while he was in service, the well-documented symptomatology and impairment caused by his PTSD, and his now long-standing 100 percent service-connected disability rating for this condition, the Board found this course of action would only unnecessarily delay the applicant’s access to the benefits, rights, and privileges that come with a disability retirement. Based on a preponderance of the evidence, the Board determined the applicant’s record should be corrected to show he was retired for permanent disability with a 100 percent disability rating effective 9 July 2008, with placement on the Permanent Disability Retired List the following day. The Board determined the record should further show: * The Soldier’s retirement is based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in the line of duty during a period of war as defined by law. * The disability did result from a combat related injury as defined in Title 26, United States Code, section 104. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20170017846, dated 6 July 2020. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was retired for permanent disability with a 100 percent disability rating effective 9 July 2008, with placement on the Permanent Disability Retired List the following day. The Board recommends that the record also shows: * The Soldier’s retirement is based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in the line of duty during a period of war as defined by law. * The disability did result from a combat related injury as defined in Title 26, United States Code, section 104. The applicant should receive any pay and allowances he is due as a result of this correction, less any entitlements already received. 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. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), 6 June 2005, in effect at the time, set forth the basic policy for the separation of enlisted personnel. Paragraph 5-17 (Other Designated Physical or Mental Conditions) stated commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability and excluding conditions appropriate for separation processing under paragraph 5-11 (Separation of Personnel Who Did Not Meet Procurement Medical Fitness Standards) or paragraph 5-13 (Separation Because of Personality Disorder) that potentially interfere with assignment to or performance of duty. a. Such conditions may include, but are not limited to: * chronic airsickness * chronic seasickness * enuresis * sleepwalking * dyslexia * severe nightmares * claustrophobia * other disorders manifesting disturbances of perception, thinking, emotional control, or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. b. When a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation in accordance with Army Regulation 40-501. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. c. Separation processing may not be initiated under this paragraph until the Soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. 2. AR 635-200, 6 June 2005 / 17 December 2009 Rapid Action Revision (RAR), issued after the applicant was discharged, added a requirement to paragraph 5-17a(9) that for Soldiers who have been deployed to an area designated as an imminent danger pay area, the diagnosis of personality disorder must be corroborated by the military treatment facility Chief of Behavioral Health (or an equivalent official); the corroborated diagnosis will be forwarded for final review and confirmation by the Director, Proponency of Behavioral Health, Office of the Surgeon General; medical review of the personality disorder diagnosis will consider whether PTSD, TBI, and/or other comorbid mental illness may be significant contributing factors to the diagnosis; if PTSD, TBI, and/or other comorbid mental illness are significant contributing factors to a mental health diagnosis, the Soldier will not be processed for separation under this paragraph but will be evaluated under the Physical Disability System in accordance with Army Regulation 635-40. 3. AR 635-200, 28 June 2021, currently in effect, paragraph 5-14(d)(1) (other designated physical or mental conditions), states that Soldiers will not be processed for administrative separation under this paragraph if PTSD, TBI, and/or other co-morbid behavioral conditions are significant contributing factors to the basis for separation, but will instead be evaluated under the Disability Evaluation System (DES) in accordance with AR 635-40. 4. AR 635-5 (Separation Documents), 15 September 2000, in effect at the time, prescribed the policies and procedures for preparing and distributing the DD Form 214. The specific instructions for item 28 (Narrative Reason for Separation) stated this is based on regulatory or other authority and can be checked against the cross reference in Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes). 5. AR 635-5-1, 10 December 2007, in effect at the time, prescribed the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on DD Form 214. Table 2-3 (SPD Codes Applicable to Enlisted Personnel) shows SPD code JFV represents "Condition, Not a Disability" and the regulatory authority as AR 635-200, paragraph 5-17. 6. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), 8 February 2006, in effect at the time, governed the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It established the Army Physical Disability Evaluation System (DES) according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense (DOD) Directive 1332.18. It set 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. If a Soldier is found unfit because of physical disability, this regulation provided for disposition of the Soldier according to applicable laws and regulations. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. 7. AR 40-501 (Medical Services - Standards of Medical Fitness), 14 December 2007, in effect at the time, governed medical fitness standards for enlistment, induction, and appointment, retention, separation (including retirement), certain enlisted military occupational specialties and officer assignments, physical profiles, and medical examinations and periodic health assessments. a. Paragraph 3-3d (Disposition), physicians who identify Soldiers with medical conditions listed in this chapter should initiate an MEB at the time of identification. Physicians should not defer initiating the MEB until the Soldier is being processed for non-disability retirement. b. Paragraph 3-30 (Neurological disorders), the causes for referral to an MEB are but not limited to, any other neurologic conditions, TBI or other etiology, when after adequate treatment there remains residual symptoms and impairments such as persistent severe headaches, uncontrolled seizures, weakness, paralysis, or atrophy of important muscle groups, deformity, un-coordination, tremor, pain, or sensory disturbance, alteration of consciousness, speech, personality, or mental function of such a degree as to significantly interfere with performance of duty. c. Note. Diagnostic concepts and terms used in paragraphs 3–31 through 3–37 are in consonance with the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM–IV). The minimum psychiatric evaluation will include Axis I, II, and III. d. Paragraph 3-31 (Disorders with Psychotic Features) stated the causes for referral to an MEB are mental disorders not secondary to intoxication, infectious, toxic, or other organic causes, with gross impairment in reality testing, resulting in interference with duty or social adjustment. e. Paragraph 3-32 (Mood Disorders) stated the causes for referral to an MEB are as follows: * persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization * persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment * persistence or recurrence of symptoms resulting in interference with effective military performance f. Paragraph 3-33 (Anxiety, somatoform, or dissociative disorders), the causes for referral to an MEB are as follows: * persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization * persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment * persistence or recurrence of symptoms resulting in interference with effective military performance g. Paragraph 3-36 (Adjustment disorders) stated situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability but may be the basis for administrative separation if recurrent and causing interference with military duty. 8. AR 40-400 (Patient Administration), in effect at the time, assigned responsibilities and provided guidance on patient administration in Army regional medical commands and military treatment facilities. Paragraph 7-5b (Use of Medical Evaluation Boards) states situations that require medical evaluation board (MEB) consideration are those involving patients whose medical fitness for return to duty is questionable, problematical, or controversial. When a member's fitness for further military duty is questionable, it becomes essential that all abnormalities in his or her condition be thoroughly evaluated. Under these conditions, evaluation will be undertaken only in a medical treatment facility that has the necessary professional staffing and equipment. 9. Title 10, U.S. Code, section 1201 (Regulars and members on active duty for more than 30 days: retirement), states: a. Retirement. Upon a determination by the Secretary concerned that a member described in subsection (c) is unfit to perform the duties of the member’s office, grade, rank, or rating because of physical disability incurred while entitled to basic pay or while absent as described in subsection (c)(3), the Secretary may retire the member with retired pay computed under section 1401 of this title, if the Secretary also makes the determinations with respect to the member and that disability specified in subsection (b). b. Required Determinations of Disability. Determinations referred to in subsection (a) are determinations by the Secretary that: (1) Based upon accepted medical principles, the disability is of a permanent nature and stable; (2) The disability is not the result of the member’s intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence; and (3) Either: (A) The member has at least 20 years of service computed under section 1208 of this title; or (B) Tthe disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination; and either— (i) the disability was not noted at the time of the member’s entrance on active duty (unless clear and unmistakable evidence demonstrates that the disability existed before the member’s entrance on active duty and was not aggravated by active military service); (ii) The disability is the proximate result of performing active duty; (iii) The disability was incurred in line of duty in time of war or national emergency; or (iv) The disability was incurred in line of duty after September 14, 1978. c. Eligible members. This section and sections 1202 and 1203 of this title apply, as relevant in this case, a member of a regular component of the armed forces entitled to basic pay. 10. Title 10, U.S. Code, section 1203 (Regulars and Members on Active Duty for More than 30 Days: Separation), states: a. Separation. Upon a determination by the Secretary concerned that a member described in section 120l(c) of this title is unfit to perform the duties of the member's office, grade, rank, or rating because of physical disability incurred while entitled to basic pay or while absent as described in section 120l(c)(3) of this title, the member may be separated from the member's Armed Force, with severance pay computed under section 1212 of this title, if the Secretary also makes the determinations with respect to the member and that disability specified below. b. Required Determinations of Disability. Determinations referred to above are determinations by the Secretary that: (1) The member has less than 20 years of service computed under section 1208 of this title. (2) The disability is not the result of the member's intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence. (3) Based upon accepted medical principles, the disability is or may be of a permanent nature; and either: (a) The disability is less than 30 percent under the Schedule of Rating Disabilities in use by the VA at the time of the determination, and the disability was the proximate result of performing active duty, incurred in the line of duty in time of war or national emergency, or incurred in the line of duty after 14 September 1978. (b) The disability is less than 30 percent under the standard Schedule of Rating Disabilities in use by the VA at the time of the determination, and the member has at least 8 years of service computed under section 1208 of this title. (c) The disability is at least 30 percent under the Schedule of Rating Disabilities in use by the VA at the time of the determination, the disability was neither the proximate result of performing active duty, incurred in the line of duty in time of war or national emergency, nor incurred in the line of duty after 14 September 1978, and the member has less than 8 years of service computed under section 1208 of this title on the date when he would otherwise be retired under section 1201 of this title or placed on the Temporary Disability Retired List under section 1202 of this title. c. However, if the member is eligible for transfer to the Inactive Status List under section 1209 of this title and so elects, he or she shall be transferred to that list instead of being separated. 11. The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and provides standard criteria and common language for classification of mental disorders. a. In 1980, the APA added PTSD to the third edition of its DSM nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a historical perspective, the significant change ushered in by the PTS D concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." b. The fifth edition of the DSM was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms, the seventh criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or cooccurring medical condition. 12. On 3 September 2014 in view of the foregoing information, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicants' service. 13. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 14. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of 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 a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220008433 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1