IN THE CASE OF: BOARD DATE: 7 July 2023 DOCKET NUMBER: AR20230000277 APPLICANT REQUESTS: * Medical retirement at a disability rating of 100 percent * In the alternative, refer him into the Integrated Disability Evaluation System (IDES) for a medical evaluation APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Power of Attorney * Two DD Forms 2697 (Report of Medical Assessment) * Two DD Forms 214 (Certificate of Release or Discharge from Active Duty) * DA Form 4980-10 (Purple Heart Certificate) * Four Department of Veterans Affairs (VA) letters * DD Form 2696 (Post Deployment Health Assessment) * Clinical Summary of Findings * Medical Notes * Battle Fatigue/Mental Health Assessment * DA Form 4187-1 (Personnel Action Form Addendum) * Standard Form 513 (Consultation Sheet) * Permanent Orders * Secretary of Defense Memorandum, dated 3 September 2014 (Hagel Memo) * VA Rating Decision FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, he joined the Army in 1987 and served on active duty as a military policeman; he continued his military service until 2004. a. In April 2003, he deployed in support of Operation Iraqi Freedom; on 5 October 2003, he incurred a loss of consciousness, he stopped breathing, and he sustained a concussion, all due to an improvised explosive device (IED) that exploded next to his vehicle. They medically evacuated him to a military hospital in Germany, where medical authority treated him for 2 days; as a result of the blast, he suffered deafness in his left ear. The Army later awarded him the Purple Heart. b. Following his medical evacuation, the applicant learned his company commander was telling the unit that the applicant was faking his injuries; in addition, the applicant heard his platoon sergeant had disclosed the applicant's medical information to the rest of the unit. The applicant felt betrayed. c. As a further consequence of the IED blast, the applicant began experiencing tinnitus in his left ear, and he had trouble keeping his balance. On 15 October 2003, the applicant reported that he feared leaving his post, was having nightmares, and had an increased heart rate. In December 2003, he underwent a follow-up medical examination, and he told the medical personnel his symptoms had worsened. d. On 25 January 2004, the Army honorably discharged the applicant, and he immediately sought medical disability benefits from the VA; after several years of disability evaluations, the VA finally increased his disability rating for post-traumatic stress disorder (PTSD) to 100 percent; additionally, the VA shows him as totally and permanently disabled. The applicant contends the Army should have referred him to a medical evaluation board (MEB) while he was still on active duty, and he should have been granted a medical retirement. 3. Counsel states the Board has jurisdiction to address the applicant's requests; he points out the applicant suffered years of debilitating health problems following his January 2004 separation. a. Factual Background. Counsel provides a summary of the applicant's service history and offers details about the applicant's injuries. In November 2003, the applicant received a PTSD diagnosis, and his initial disability rating was 50 percent; in March 2008, they increased the applicant's rating to 100 percent. b. Discussion. The Army's Disability Evaluation System (DES) is designed to ensure Soldiers are physically qualified to perform their duties in a reasonable manner; as such, medical retention standards have been established to determine the overall effect of one or more impairment on a Soldier's ability to continue military service. (1) Citing Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), counsel notes the Army defines a Soldier unfit for duty as, "a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his employment on active duty. 'Physically unfit' is synonymous with 'unfit because of physical disability.'" (2) According to the 1999 version of 38 CFR (Code of Federal Regulations), section 4.130 (Schedule of Ratings Mental Disorders), PTSD started being evaluated under the "General Rating Formula for Mental Disorders," effective 7 November 1996. (a) The formula stated a 50 percent evaluation was warranted for "occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect, circumstantial circumlocutory, or stereotyped speech, panic attacks more than once a week, difficult in understanding complex commands, impairment of short-and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships." (b) A 100 percent evaluation was appropriate for the following symptoms: "total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory Joss for names of close relatives, own occupation, or own name." (3) Counsel argues, the applicant's PTSD symptoms are directly related to his deployment in Iraq, and the applicant first experienced those symptoms shortly after the IED blast. Less than two months later, the applicant told his squad leader he felt like a number; that he had been betrayed by his command after their public disclosure of his sensitive medical information; and that he thought the unit believed he had faked his injuries. Upon the applicant's redeployment, his duty performance slipped dramatically, and he started having bursts of anger, sleep disturbances, and flashbacks. (4) The "Hagel Memo" mandates that the Board, "fully and carefully consider every petition based on PTSD brought by each Veteran," and in the attachment, it states special consideration will be given to VA determinations that document PTSD. Further, conditions recorded in the record, which can be reasonably determined to have existed at the time of discharge, will be deemed to have existed at the time of service; and liberal consideration will be given to petitions for upgrades in character of service. Finally, the "Hagel Memo" encourages the Board to obtain advisory opinions from Department of Defense (DOD) mental health professionals when evaluating cases involving PTSD. If the Board follows the requirements of the "Hagel Memo," it should have little trouble in granting the applicant's request. c. Conclusion. Since the applicant's 2004 separation, IDES has dramatically changed the assessment of a Soldier's unfitting conditions. (1) Counsel contends the applicant should have had his medical conditions evaluated by an MEB to determine whether he was fit or unfit for continued service. Had this occurred, "it would have been very clear that he was unable to perform the duties of his job, namely serving as a military police officer." (2) Counsel continues, "The next step should have been a full PEB (physical evaluation board) to determine whether his conditions were service-connected. Based on the records herein, it is evident [applicant]'s conditions were service-connected. The final step would have been for [applicant] to have a complete examination with the VA to determine the appropriate rating for his conditions, which would have allowed him the needed continuity of care that he failed to receive from the Army. [Applicant] did receive a VA examination and was awarded the maximum rating of 100 %. There is no doubt, based upon the documents provided, that [applicant] should have been medically retired." 4. Counsel provides documents from both the applicant's service record and his service treatment records; in addition, he submits four VA letters and a VA Rating Decision, reflecting the VA's award of service-connection for PTSD and other medical conditions. 5. A review of the applicant's service record reveals the following: a. On 21 April 1987, the applicant enlisted into the Regular Army for 4 years; on 2 May 1991, the Army honorably released the applicant from active duty and transferred him to the New York Army National Guard (NYARNG), where the applicant had enlisted for a 3-year term. b. On 22 February 1998, the NYARNG honorably discharged the applicant and transferred him to the U.S. Army Reserve (USAR). On 23 February 1998, the applicant enlisted into the USAR for 6 years. c. Effective 13 February 2003, U.S. Army Reserve Personnel Command (ARPERCEN) orders assigned the applicant to a military police Troop Program Unit (TPU); the orders showed the applicant's expiration term of service as 22 February 2004. d. USAR Regional Support Command orders mobilized the applicant, and he entered active duty; on 16 April 2003, the applicant deployed to Kuwait/Iraq. e. On 5 October 2003, the applicant sustained injuries following an IED explosion; after first being admitted for treatment at an in-theater combat support hospital, medical authority evacuated the applicant to a military hospital in Germany for further evaluation. On or about 30 October 2003, the military hospital released the applicant and returned him to duty. f. Permanent Orders (PO), dated 18 December 2003 and issued by Combined Joint Task Force Seven, awarded the applicant the Purple Heart for injuries sustained, on 5 October 2003. On 18 December 2003, the applicant redeployed. g. On 25 January 2004, orders honorably released the applicant from active duty and returned him to his USAR TPU. The applicant's DD Form 214, as later amended by a DD Form 215 (Correction to DD Form 214), shows he was honorably released from active duty due to completion of his required active service. His DD Form 214 show he completed 11 months and 19 days of net active duty service. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) reflected the following: * National Defense Service Medal with Numeral "2" * Armed Forces Reserve Medal with "M" Device * Army Service Ribbon * Army Commendation Medal * Iraq Campaign Medal with two bronze service stars * Global War on Terrorism Service Medal * Combat Action Badge * Valorous Unit Award h. According to the Soldier Management Services (SMS) database, maintained by the U.S. Army Human Resources Command (HRC), the USAR discharged the applicant, on 6 April 2004, based on having reached his expiration term of service; the applicant's available service record is void of any separation orders. 6. The applicant requests either a medical discharge, with a 100 percent disability rating, or referral into IDES. a. The version of AR 40-400 (Patient Administration) then in effect stated Soldiers who are returned to duty following a hospitalization, and for whom no permanent revision was made to their physical profile, were not to be evaluated by an MEB. (1) MEB consideration was required for patients whose medical fitness for return to duty was questionable, problematic, or controversial. When a member's fitness for further military duty was questionable, it became essential that all abnormalities in his/her condition to be thoroughly evaluated. (2) Reserve Component personnel on authorized duty whose fitness for military service, upon completion of hospitalization, was questionable, or for those who needed hospitalization beyond the termination of their tour of duty, also required referral to an MEB. (3) Individuals determined by an MEB to fail the medical retention standards outlined in AR 40-501 (Standards of Medical Fitness) were forwarded to a PEB for a fitness determination. b. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, stated: (1) Paragraph 3-1 (Standards of Unfitness because of Physical Disability). "The mere presences of an 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 their office, grade, rank, or rating." (2) PEBs were charged with investigating the nature, cause, degree of severity, and probable permanency of a Soldier's disabling conditions; assessing the Soldier's physical conditions against the physical requirements of the Soldier's particular office, grade, rank, or rating; and making findings and recommendations, to include ratings determinations, in accordance with the law. (3) The PEB's available dispositions for the Soldier included: * return to duty * separate with severance pay when the combined disability rating was 20 percent or less * For combined ratings of 30 percent or more: when the PEB could not confirm the permanency of a disabling condition, it recommended the Soldier for the Temporary Disability Retired List; conditions not likely to change over time resulted in placement on the Permanent Disability Retired List c. On 3?September 2014, 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 applicant's service. 7. The applicant provides evidence the VA has rated him as 100 percent disabled. a. The VA and the Army operate under separate provisions of Federal law (Title 38 (Veterans' Benefits) and Title 10, respectively). As such, each makes independent determinations by applying the policies and mandates set forth within their respective parts of the law. Decisions made by the VA regarding a Soldier's service- connected disabilities are not binding on the Army, and do not reflect that the Army's determinations were wrong. b. The Army rates only conditions determined by the Army's DES to be physically unfitting and which would disqualify the Soldier from further military service. The benefits associated with the Army's disability rating are intended to compensate the individual for the loss of a military career. By contrast, the VA awards disability ratings to Veterans for service-connected conditions, including those conditions detected after discharge; the VA's focus is on compensating the individual for the loss of civilian employability. 8. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting a medical disability retirement with a disability rating of at least 100%. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant served honorably in the Regular Army and the New York Army National Guard before transferring the US Army Reserve (USAR) on 23 February 1998 for a 6-year term of enlistment; 2) The applicant mobilized, and on 16 April 2003, he deployed to Kuwait/Iraq. On 5 October 2003, the applicant sustained injuries following an IED explosion. He was treated at a combat support hospital and was later evacuated Landstuhl Regional Medical Center (LRMC). After two days on 30 October 2003, LRMC returned the applicant to duty; 3) On 25 January 2004, the applicant was honorably released from active duty due to completion of active service. On 06 April 2004, the applicant was discharged from USAR based on reaching his expiration term of service. The applicant's available service record is void of any separation orders. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant s military service and medical records. The VA s Joint Legacy Viewer (JLV) along with the applicant s VA Benefits letters were also reviewed. d. The applicant states he incurred a TBI and PTSD during his deployment to Iraq. There is clear evidence the applicant was exposed to an explosion in the line of duty as the result of an IED during his deployment on 05 October 2003. He also received a Purple Heart for this injury. He was evaluated by a behavioral health provider (528th Medical Detachment Combat Stress Control) on 15 October 2003. This evaluation occurred only ten days after the explosion, and the applicant was reporting symptoms consistent with a recent exposure to a traumatic event (i.e., nightmares, feeling withdrawn, hyper alertness, increased anxiety, increased agitation, insomnia, and flashbacks). He was also experiencing symptoms of a TBI and hearing loss. He was diagnosed with Acute Stress Disorder and Adjustment Disorder. He was prescribed Klonopin as needed for anxiety and 72-light duty before returning to duty. It was also recommended he follow up with behavioral health. He was later evacuated to LRMC. He was evaluated for symptoms of a TBI, trauma to his ear, and trauma disorder symptoms. He was released and returned to duty on 30 October 2003. There is no available medical record of the applicant s medical treatment for the remaining time the applicant in theater or an evaluation of the applicant s military performance at that time. However, after redeploying, the applicant post deployment health assessment (22 November 2003) and his Report of Medical Assessment (19 December 2003), provided evidence the applicant was still reporting problems related to a TBI and symptoms consistent with a trauma disorder. There is no evidence the applicant was provided a duty limiting profile for his reported medical or behavioral health concerns before his expiration of service in April 2004. e. A review of JLV provided concurrent evidence that the applicant has been treated for various physical injuries and behavioral health concerns since his deployment to Iraq. He was diagnosed with PTSD by the VA in January 2004. He also reported continued headaches and symptoms consistent with a TBI. The applicant has engaged in regular group psychotherapy and medication management for PTSD at the VA along with treatment of other physical concerns. The applicant was awarded service- connected disability for PTSD and migraine headaches since 26 January 2004. f. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence applicant has a history of PTSD and TBI, which occurred as a result of his combat deployment Iraq. However, there is insufficient evidence the applicant was unable to complete his military duties at that time. He was evacuated to LRMC after experiencing a blast injury, but he was evaluated and returned to duty. He also completed his deployment without sufficient evidence of requiring a duty limiting profile. In addition, he honorably completed his term of service shortly after returning from his deployment. Therefore, a referral to IDES is not warranted at this time. Kurta Questions 1. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant has been diagnosed with the following potentially mitigating BH conditions: PTSD and migraines associated with a TBI. 2. Did the condition exist or experience occur during military service? Yes, the VA s granting of service connection for PTSD (100% Service Connected) establishes it occurred during military service. In addition, there is clear evidence in JLV and the applicant s military medical record the applicant was reporting symptoms of a TBI and a trauma related behavioral health disorder shortly after being exposed to an IED explosion. 3. Does the condition experience actually excuse or mitigate the discharge? No, there is sufficient evidence applicant has a history of PTSD and TBI, which occurred as a result of his combat deployment Iraq. However, there is insufficient evidence the applicant was unable to complete his military duties at that time. He was evacuated to LRMC after experiencing a blast injury, but he was evaluated and returned to duty. He also completed his deployment without sufficient evidence of requiring a duty limiting profile. In addition, he honorably completed his term of service shortly after returning from his deployment. Therefore, a referral to IDES is not warranted at this time. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant s contentions, the military record, and regulatory guidance. The Board considered any additional supporting documentation available for review. The Board found that although evidence available for review is sufficient to show that the applicant has a history of PTSD and TBI, it is insufficient to determine that he was unable to complete his military duties at that time. Based on the preponderance of the documentation available for review, the Board determined the evidence presented insufficient to warrant a recommendation for a referral to the Integrated Disability Evaluation System or a medical retirement. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC: a. Section 1552(b) provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3- year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. b. Section 1556 (Ex Parte Communications Prohibited) provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 2. AR 40-400, in effect at the time, stated Soldiers who are returned to duty following a hospitalization, and for whom no permanent revision was made to their physical profile, were not to be evaluated by an MEB. a. MEB consideration was required for patients whose medical fitness for return to duty was questionable, problematic, or controversial. When a member's fitness for further military duty was questionable, it became essential that all abnormalities in his/her condition to be thoroughly evaluated. b. Reserve Component personnel on authorized duty whose fitness for military service, upon completion of hospitalization, was questionable, or for those who needed hospitalization beyond the termination of their tour of duty, also required referral to an MEB. c. Individuals determined by an MEB to fail the medical retention standards outlined in AR 40-501 were forwarded to a PEB for a fitness determination. 3. AR 635-40, then in effect, prescribed policies, and procedures for disability separations. a. Paragraph 3-1 stated the mere presence of an impairment did not, of itself, justify a finding of unfitness due to a physical disability. Each individual Soldier's case had to be assessed to determine whether the nature of the disability caused the Soldier to become unable to perform the duties expected of a Soldier of his/her rank. b. PEBs were charged with investigating the nature, cause, degree of severity, and probable permanency of a Soldier's disabling conditions; assessing the Soldier's physical conditions against the physical requirements of the Soldier's particular office, grade, rank, or rating; and making findings and recommendations in accordance with the law. c. The PEB's available dispositions for the Soldier included: * returned to duty * separated with severance pay when the combined disability rating was 20 percent or less * Concerning combined ratings of 30 percent or more: when the PEB could not confirm the permanency of a disabling condition, it recommended the Soldier for the Temporary Disability Retired List; conditions not likely to change over time resulted in placement on the Permanent Disability Retired List 4. On 3?September 2014, 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 applicant's service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000277 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1