IN THE CASE OF: BOARD DATE: 23 August 2023 DOCKET NUMBER: AR20230000392 APPLICANT REQUESTS: the following through Counsel: * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect physical disability retirement in lieu of honorable discharge due to condition, not a disability * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s brief * List of Exhibits * all documents enumerated in listed exhibits 1-22 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. Counsel states: a. The applicant served his country as a Combat Engineer in the U.S. Army from 1997 to 2006, participating in one of the first deployments to Iraq in support of Operation Iraqi Freedom (OIF) in 2003. In Iraq, he and his team were responsible for scouting and clearing improvised explosive devices (IEDs). During his 6-month deployment to Iraq, he experienced innumerable traumatic events, including direct gunfire, explosions, and ambushes by hostile forces , during which he witnessed combat-related injuries and fatalities suffered by his fellow Soldiers. b. During the applicant's subsequent deployment to South Korea in 2004, he began experiencing acute symptoms consistent with post-traumatic stress disorder (PTSD), including nightmares, night sweats, difficulty sleeping, irritability, and suicidal ideology. The applicant began receiving mental health treatment for PTSD in Korea, but his symptoms continued to worsen. In January 2006, he was "counseled for being not fit for duty," during which it was noted that he had "been diagnosed with post-traumatic stress disorder at Madigan Army Medical Center." In March 2006, the applicant underwent a Mental Status Evaluation, where he was diagnosed with PTSD on Axis I with no diagnosis on Axis II. On 22 March 2006, the applicant was notified that his commanding officer was initiating action to separate him under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 5, Section III, paragraph 5-17, because he had "been diagnosed with a mental disorder which prevents him from effectively performing his military duties." The applicant's separation authority directed he be separated under paragraph 5-17 "because of other designated physical or mental condition. " c. Despite his documented diagnosis for and ongoing symptoms and treatment of PTSD, a compensable mental health condition, the applicant was not referred for consideration for a medical retirement to the Disability Evaluation System (DES). The record shows that his physician stated, on two separate occasions and without explanation, that he would not recommend a Medical Evaluation Board (MEB). Then, on 24 April 2006, the applicant was inexplicably administratively separated from the Army on the basis of a condition, not a disability pursuant to Army Regulation 635-200, paragraph 5-17. d. On 12 February 2008, the Department of Veterans Affairs (VA) granted the applicant service-connection for PTSD evaluated at 30 percent disabling effective 25 April 2006 (the day after he was separated from the Army).He has consistently been diagnosed with and received treatment for PTSD since discharge. In September 2009, his rating for PTSD was increased to 70 percent disabling effective 5 November 2008. In March 2014, his rating for PTSD was increased to 100 percent disabling. The records of the applicant's medical treatment contain descriptions of his ongoing symptoms of PTSD as including involuntary, intrusive, and distressing recollections of his in-service combat experiences, including seeing people getting blown up, dead children, and intense gunfights. e. The facts show that the applicant's duty limitations were caused by PTSD resulting from his combat experience in Iraq, that his PTSD was well-documented and diagnosed during his deployments, and thus that he was not a proper candidate for administrative separation based on a "condition, not a disability." Instead, the applicant should have been referred to the DES process and medically retired. His administrative separation for a condition, not a disability, has resulted in him not receiving monthly military disability retirement income and TRICARE benefits to which he and his family are entitled. It is unquestionable that had the applicant been evaluated under the DES process, he would have been determined to be at least 30 percent disabled and unfit for military service due to his service-connected PTSD. Not only was the applicant's administrative separation unsupported by the evidence from his medical record, it has led to undue stigma and has undermined his employment opportunities post-discharge. f. For the reasons set forth more fully below, the applicant requests that the ABCMR determine that he was improperly administratively separated for a "condition, not a disability" notwithstanding his clear diagnosis of PTSD resulting from combat, and correct his records to grant him a medical disability retirement and the associated benefits to which he was entitled. g. The applicant grew up in an Army family; his father was in the Army (sergeant first class (SFC)/E-7 (Retired), and his military family moved frequently, residing in El Paso, Texas immediately prior to enlistment. The applicant enlisted in the U.S. Army and served his country from 1 October 1997 to 24 April 2006, when he was discharged for a "condition, not a disability" pursuant to Army Regulation 635-200, paragraph 5-17 . h. While in the Army, the applicant's military occupational specialty (MOS) was 21B (Combat Engineer). His decorations include an Army Commendation Medal (with three oak leaf clusters), an Army Achievement Medal, an Army Good Conduct Medal, a National Defense Service Medal, a Global War on Terrorism Service Medal, a Korea Defense Service Medal, a Non-Commissioned Officer (NCO) Professional Development Ribbon, an Army Service Ribbon, an Overseas Ribbon (2nd Award), and an Iraq Campaign Medal. He also received both the Air Assault Badge and the Driver and Mechanic Badge. i. The applicant was deployed to Iraq from 29 March 2003 to 22 November 2003 and to South Korea in 2004. His mental health began to deteriorate starting at the end of his deployment to Iraq, as described and documented by numerous healthcare practitioners, examiners, and counselors before his discharge. Army and VA providers diagnosed the applicant with a compensable mental health disorder, PTSD, rated by the VA at 30 percent from discharge. Nevertheless, the applicant was administratively separated from the Army for a "condition, not a disability" pursuant to Army Regulation 635-200, paragraph 5-17. Despite the clear diagnosis, he was inexplicably not referred to an MEB even though he qualified for medical retirement. The applicant suffered from PTSD at the time of his discharge and continues to suffer from PTSD; in fact, his condition is currently evaluated at 100 percent disabling. He (and his family) continue to suffer from the lack of the monthly military disability retirement income and TRICARE benefits to which he is entitled. j. Prior to enlisting, on 30 July 1997, the applicant underwent a physical examination, in which the examiner evaluated his psychiatric profile as "normal." There are no mental defects, diagnoses, or notes related to mental disorder identified in the examiner's evaluation. In a 2008 Compensation and Pension (C&P) Exam, it was noted that the applicant denied having "any history of psychiatric illness in the family." k. The applicant’s PTSD can be attributed to numerous traumatizing events that occurred while he was deployed in Iraq. He was team leader of a team that cleared IEDs from around cities in Iraq, with his DA Form 2166-8 (NCO Evaluation Report) noting that he led the team "in over 350 room clearings" around Karbala and Baghdad. As such, he was witness to significant combat injuries, fatalities, and direct fire from enemy forces during Operation Iraqi Freedom. Some examples of the types of traumatizing experiences that the applicant survived in Iraq include the following: (1) In Mosul, the Army used a supply plant that had propellant stored in it as its operating base. One day, the grass caught fire and set off a variety of explosions of munitions and munitions propellant. This started a chain reaction that resulted in explosions throughout the bunker and the entire base. The applicant reported being trapped for 5 hours with explosives going off all around his location near stockpiled rocket-propelled grenades, missiles, and other explosives, wondering if the next explosion would kill him. Ultimately, he was able to escape from this precarious position, but the explosions continued for 24 hours. When they returned to the area, he saw Iraqi civilians who had been killed or injured, and land and housing in the area were destroyed. (2) The applicant had to gain entry into a building, where the engineers put a central charge against the wall to allow Soldiers to penetrate the wall. There were people inside the structure, and this was the second floor of a building in a densely populated neighborhood. One of his fellow Soldiers was forced to shoot a child about 9 to 10 years of age who had a weapon and was engaging in the firefight. The applicant’s PTSD triggers include being affected by traumatic memories of that child's death. (3) After a helicopter scouting for IEDs crashed in Mosul, the applicant was on a quick reaction team assigned to retrieve the bodies out of the helicopter. The applicant stated during his medical exams that he still remembers the smell. (4) The applicant recalls several other incidents of seeing people "blown up right in front of us" and IEDs resulting in "body parts flying around l. Despite the severe pressure of serving in this environment, the applicant's performance evaluation reports demonstrate his high level of service and commitment to his team, noting that he "demonstrated personal courage and selfless service under heavy fire from enemy Iraqi forces during Operation Iraqi Freedom," showed "unquestionable loyalty to the unit and the Army," and "always puts Army, mission and Soldiers before personal interest. m. The applicant began to manifest symptoms of PTSD while deployed to Korea. He began having nightmares, night sweats, sleep disturbances, and described waking up screaming. The applicant was seen at a behavioral health clinic on 7 July 2005. According to a Mental Status Evaluation in March 2006, the applicant "had been deployed to a combat zone for 1 year, he had been exposed to combat, had received direct fire, and had witnessed combat related injuries and fatalities suffered by others." It was noted that he "has been on profile since July 2005 deeming him unfit for deployment to combat zones as well as unfit for exposure to anything but the mildest stressors. These limitations are manifestation of [the applicant's] psychiatric illness.” His C&P exam report from 2008 noted, "His medical records reflect ongoing treatments for post-traumatic stress disorder dating from 2005 until he was discharged.” n. The applicant was treated for PTSD in Korea, including treatment with various medications. He was deemed to be undeployable for another deployment to Iraq. On 11 January 2006, the applicant was counseled " for being not fit for duty." In the summary of counseling, it was noted that he was assigned to the 14th Engineer Battalion in August 2005 from Korea where he was being treated for PTSD, since then he had been diagnosed with PTSD at Madigan Army Medical Center. This prevented him from carrying a weapon and deploying with the rest of the battalion in support of OIF. Staff Sergeant (SSG) talked to the applicant’s doctor and the doctor informed him that he would not recommend an MEB at that time. With the battalion’s support of OIF, if the applicant’s condition did not improve, this chain of command would have no other option than to recommend a chapter 5-17 discharge. o. The applicant was counseled again on 3 March 2006, for not being fit for duty. The summary of counseling notes, "I have talk[ed] to your doctor again, and he will still not recommend you to the MEB. Doctor is supporting the chain of command’s [sic] recommendation to request a chapter 5-l 7." On 8 March 2006, the applicant underwent a Mental Status Evaluation, where he was diagnosed with PTSD on Axis I, and with no diagnosis on Axis II. The evaluation notes that the applicant had been treated for PTSD with pharmacotherapy, group therapy, and individual therapy with "limited improvement in his chief complaints, and that he "is suffering from symptoms of such severity that his ability to effectively preform his military duties is significantly impaired." p. It is unexplained in the record as to why the applicant was not recommended to the MEB despite the clear documentation of his diagnosed PTSD, treatment, and ongoing symptoms at the time of initiation of the administrative separation process. q. On 22 March 2006, the applicant’s separation process began when he was informed that his commanding officer was initiating action to separate him under Army Regulation 635-200, paragraph 5-17 "because of other designated physical or mental condition," specifically because he had "been diagnosed with a mental disorder which prevents him from effectively performing his military duties." The applicant's chain of command recommended that he be separated under Army Regulation 635-200, paragraph 5-17, and the separation authority directed he be separated under these provisions "because of other designated physical or mental condition." Despite the evidence from the counseling records described above regarding the applicant's PTSD diagnosis, the Army continued to separate the applicant administratively rather than refer him for DES processing due to his PTSD. The applicant's DD Form 214 indicates that he was separated for a "condition, not a disability. r. On 12 February 2008, the VA granted the applicant service-connection for PTSD evaluated at 30 percent disabling effective 25 April 2006 (the day after he was separated from the Army). On 25 January 2008, he underwent a C&P Exam for an initial evaluation of the veteran's PTSD. He was diagnosed with PTSD, directly related to active duty service on Axis I, and with no diagnosis on Axis II. s. Post-discharge, the applicant has consistently been diagnosed with PTSD and has received intermittent mental health treatment for this condition from the VA. On 8 January 2009, he underwent a C&P Exam relating to his PTSD. He was diagnosed with PTSD, alcohol abuse in remission, and abuse of cannabis and Adderall as a means of coping with PTSD symptoms on Axis I, and with no diagnosis on Axis II. On 29 January 2009, the VA increased his evaluation for PTSD from 30 percent disabling to 70 percent disabling effective 5 November 2008. t. On 11 March 2014, the applicant underwent a C&P Exam relating to his PTSD. He was diagnosed with PTSD among other conditions, and the evaluator noted that the "Veteran reported that he currently experiences involuntary, intrusive, and distressing recollections of his in-service military stressors daily. These memories are usually about various combat experiences, seeing people getting blown up, seeing dead children, engaging in fire fight." The examiner found that "[b]ased solely on this clinical interview data, veteran's overall level of PTSD symptomatology appeared to be severe." On 13 March 2014, the VA increased the rating for PTSD to 100 percent disabling u. As described above, the applicant's medical records clearly show that since his deployment to Iraq, he has experienced and continues to experience significant service- related impairments that qualify him for medical retirement and benefits. v. The applicant respectfully requests that his records be corrected to change the Separation Authority, Separation Code, and Narrative Reason for Separation from an incorrect administrative separation under Army Regulation 635-200, paragraph 5-17, to a medical retirement under Title 10 U.S.C., section 1201 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) for being unfit because of service-related medical disabilities, including PTSD. w. The Army erred by administratively separating the applicant instead of referring him into the DES and medically retiring him for service-connected PTSD. A Soldier must be medically retired when he is " unfit to perform the duties of the member's office… because of physical disability.” A Soldier qualifies for medical retirement when: (I) 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 percent disabling under the VA 's disability rating schedule. Despite the applicant’s clear diagnosis and treatment for PTSD at the time of his discharge, he was separated from the Army pursuant to Army Regulation 635-200, paragraph 5-17 for a condition, not a disability x. When separating a Soldier under the provisions of Army Regulation 635-200, paragraph 5-17, the physical or mental condition not amounting to a disability must "potentially interfere with assignment to or performance of duty." Separation under this paragraph "may not be initiated…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." Additionally, "[a] recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition." y. The applicant did not have such a disorder; he had and continues to suffer from PTSD. Even if the Army were to assert that he suffered from both PTSD and a chapter 5- 17 disorder, the Army was required to explore the debilitating effects of PTSD before considering an administrative separation based on a disorder. By the time the applicant was recommended for administrative separation, he had been exposed to extreme combat conditions and had been diagnosed with PTSD after exhibiting clear symptoms post-deployment to Iraq as part of OIF. z. On 25 August 2017, DOD issued clarifying guidance for Discharge Review Boards and Boards for Correction of Military/Naval Records ("BCM/NRs") considering requests by veterans for modification of their prior discharges due to mental health conditions. The guidance states, "Liberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI…" This DOD guidance applies to a veteran 's "discharge," which includes the "characterization, narrative reason, separation code, and re-enlistment code." It advises that veterans "may be the victim[s] of injustice," "when compared to similarly situated individuals under today's standards...because commanders fully informed of such conditions and causal relationships today may opt for a less prejudicial discharge to ensure the veteran retains certain health benefits, such as medical care." The Army erred in administratively separating the applicant pursuant to paragraph 5-17, under which he was not entitled to certain benefits, instead of medically retiring him for his service- connected PTSD. aa. It is clear from the medical record and Army policy that the applicant should have been referred to an MEB. Army Regulation 40-400 (Patient Administration) provides that a Soldier should be referred to an MEB if the Soldier's "medical fitness for return to duty is questionable, problematical, or controversial." At the time of the applicant's service, PTSD was classified as an anxiety disorder. Per Department of Defense guidance, dated 14 November 1996, in place at the time of his separation, enclosure 4 shows anxiety disorders, like PTSD, should be referred to the DES, "when symptoms are persistent, recurrent, unresponsive to treatment, require continuing psychiatric support, and/or are severe enough to interfere with satisfactory duty performance.” Contrary to the conditions described in Army Regulation 635-200, paragraph 5-17, then, an anxiety disorder like PTSD that interferes with effective military performance was cause for referral to an MEB. bb. In the applicant’s case, referral to the DES was clearly proper and required per DoDI 1332.38, because there was an obvious concern that his mental health symptoms interfered with effective military performance; otherwise, he would not have been recommended for separation because "you have been diagnosed with a mental disorder which prevents him [sic] from effectively performing his [sic] military duties." As described above, his service was interrupted by his diagnosed PTSD, brought on by an intense combat experience and direct enemy fire during his deployment as a Combat Engineer during OIF. The applicant was unfit for duty because of his service-connected PTSD that manifested during his deployment. In fact, the summary of counseling for being not fit for duty specifically notes his treatment "for post-traumatic stress disorder" since his assignment to Korea in August 2005. Further, the summary of counseling states, "This has prevented you from carrying a weapon and deploying with the rest of the battalion in sup[p ]ort of OI.F [(Operation Iraqi Freedom)]. " This record and a second counseling summary two months later each state, without further explanation, that the applicant’s doctor would not refer him to an MEB. cc. In addition, the applicant’s Mental Status Evaluation from 8 March 2006 noted that he had been on profile since July 2005 "deeming him unfit for deployment to combat zone as well as unfit for exposure to anything but the mildest stressors ," and that "[t]he present evidence indicates that SM is suffering from symptoms of such severity that his ability to effectively perform his military duties is significantly impaired." These circumstances, in addition to SGT Lunceford's recommendation for discharge due to his mental disorder, demonstrate that he was unable to perform his duties as a Combat Engineer due to his PTSD, and therefore should have been referred to an MEB. dd. The applicant's PTSD was a compensable injury that actually and actively interfered with the effective military performance of his duties as a Combat Engineer, and caused him to fall below medical retention standards. Pursuant to Army Regulation 635-40, DES processing is comprised of MEBs, PEBs, counseling, and mechanisms for determining whether a Soldier should be discharged as unfit for further military duty. If the applicant's situation had been handled properly, he would have been evaluated by an MEB, which would have prepared a narrative summary (NARSUM) of his medical conditions. This evaluation would have involved an extensive review of all of his debilitating conditions, the history of his illness, reports of consultations, responses to therapy, the medical basis for his diagnosis, its onset and the correlation between his conditions and physical capabilities. Army Regulation 635-40, paragraph 4-13 directs the MEB to recommend that the Soldier's case file be referred to a PEB for fitness determination if it finds that a Soldier's medical conditions "do not meet medical retention standards. " ee. Had the applicant been referred into the DES process, the MEB would have found he failed medical retention standards per Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-33, which provides the Army’s retention standards for PTSD, such that his case would have been forwarded to the PEB for a fitness determination. Specifically, Army Regulation 40-501 calls for the MEB to find that anxiety disorders like PTSD fail medical retention standards when the "persistence or recurrence of symptoms…necessitate limitations of duty or duty in a protected environment" or interfere "with effective military performance." The applicant’s PTSD symptoms were persistent and recurrent during his separation process and are still present today, and the Army clearly had concerns (which the record shows arose from his PTSD) about his ability to continue performing his duties as necessary. ff. Upon an MEB finding the applicant’s PTSD to fail medical retention standards, his PTSD would then have been evaluated by the PEB where it would have been determined that his condition was unfitting pursuant to DoDI 1332.38. "A Service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank or rating. " In making this determination, the PEB assesses whether "[t]he medical condition represents a decided medical risk to the health of the member or to the welfare of other members were the member to continue on active duty or in an Active Reserve status. The medical condition imposes unreasonable requirements on the military to maintain or protect the member. The Service member's established duties during any remaining period of reserve obligation." Again, the fact that he was separated (improperly) from the Army based on his diagnosed mental disorder making him unfit for his military duties is strong evidence that the PEB would have concluded the PTSD precluded his continued service in the Army. gg. Given that the evidence shows that the applicant’s PTSD made him unfit for continued military service because he could not perform his military duties, the PEB would have gone on to decide the degree of disability of his PTSD under the VA 's disability rating schedule. A service member needs only a disability rating of 30 percent in order to be retired from the military. If the evidence shows that the applicant would be entitled to at least a 30 percent rating under this schedule, then it logically follows that he should have been provided Army disability retirement benefits for the rest of his life, as well as TRICARE. Here, he was originally granted service-connection for PTSD evaluated at 30 percent disabling effective 25 April 2006, the day after the veteran was discharged from the Army, which was later increased to 100 percent disabling. Had his case been properly reviewed by MEB or PEB, the applicant undoubtedly would have been found unfit for further military service with at least a 30 percent disability rating, and he would have been medically retired. . It is clear from the evidence above that the applicant’s condition was stable enough to reach a medical determination point, and that he should have been found unfit with at least a 30 percent disability rating. However, even if the PEB determined that his condition were unstable, under 38 C.F.R., section 4.129, he should have been placed at a 50 percent disability rating and placed on the Temporary Disability Retirement List (TDRL), which requires a re-evaluation at least once every 18 months until the condition stabilizes for up to five years. On this record, the applicant should have been placed on the TDRL with a 50 percent disability rating for 5 years and then re-examined to determine whether he was permanently injured. In Cook, the Court of Federal Claims held: [B]ecause the Army failed to schedule a follow-up examination and convene a new PEB for plaintiff, the statutory and regulatory prerequisites for removing a soldier from the TDRL, it was required to retain plaintiff on the TDRL for as long as was legally authorized. And, again, because the Army failed to schedule a follow-up examination and convene a new PEB at the end of plaintiff’s constructive 5-year term on the TDRL, the Army, upon considering the plaintiff’s application to the Physical Disability Board of Review (PDBR), should have constructively removed plaintiff from the TDRL with his original 50 percent PTSD disability rating. See Title 10 U.S.C., section 1554a(d)(3) (indicating that the PDBR cannot recommend a reduction of the disability rating assigned by the PEB)) ii. Cook provides that because the applicant never received a follow-up examination or new PEB, the ABCMR, should, upon determining that the applicant was unfit for duty as a result of his combat-related PTSD, permanently retire him with a 50 percent PTSD disability rating. Per Title 10 U.S.C., section 1203, separation is only appropriate where the disability is less than 30 percent. Title 10 U.S.C., section 1201 calls for medical retirement when the disability is 30 percent or greater. Medical retirement is appropriate when disability " is of a permanent nature and stable." 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." Furthermore, the disability was "not noted at the time of the member's entrance on active duty" and "incurred in the line of duty in time of war or national emergency" after 14 September 1978. The applicant met and continues to meet all statutory requirements for a medical retirement. jj. Moreover, DOD's revised guidance for BCM/NRs considering requests by veterans for modification of their prior discharges due to mental health conditions provides for " [l]iberal consideration" where the veteran's request " is based on whole or in part on matters relating to mental health conditions, including PTSD..." It further notes that veterans "may be the victim[s] of injustice," "when compared to similarly situated individuals under today 's standards...because commanders fully informed of such conditions and causal relationships today may opt for a less prejudicial discharge to ensure the veteran retains certain health benefits, such as medical care." The applicant was such a victim of injustice, with a clear diagnosis of PTSD (prior to discharge) resulting from his experiences during his deployment to Iraq. The evidence presented in his medical records clearly supports this application. kk. The applicant served his country honorably in OIF, and has suffered debilitating symptoms of PTSD for nearly two decades as a result of his combat experience. Despite documented evidence of his diagnosis with PTSD before his discharge from the Army, he was not referred for DES processing, but was inappropriately administratively separated for a "condition, not a disability. Had the applicant been referred to DES processing, there is no doubt that he would have been found unfit for military service with at least a 30 percent disability rating and would have been medically retired. He was instead discharged with an expedient administrative procedure that was contradictory to the evidence in his medical records with regard to his PTSD diagnosis. ll. The Army's decision was contrary to the evidence available at the time, and in violation of Army Regulations and Department of Defense Directives. These errors deprived the applicant of the benefits to which he is rightfully entitled. The ABCMR has the authority and opportunity to correct these injustices, and should do so now. 3. A Standard Form 88 (Report of Medical Examination), shows on 30 July 1997, the applicant underwent medical examination for the purpose of Regular Army enlistment and was found qualified for enlistment with a physical profile rating of “1” in all factors. 4. The applicant enlisted in the Regular Army on 1 October 1997, and was awarded the MOS 21B. 5. The applicant deployed to Iraq from 29 March 2003 through 22 November 2003. 6. The applicant’s NCOER, covering the period from March 2003 through November 2003, shows he was rated “Excellence” or “Success” in all categories by his Rater, with the following comments: * demonstrated mental toughness by making sound decisions in combat * team effectively placed three obstacles on the main route over the Euphrates River near the city of Al Kifl * lead team I over 350 room clearings while supporting the 2nd Brigade in the cities of Karbala and Baghdad 7. The applicant provided numerous pages of service treatment records, dated between July 2005 and January 2005, all of which have been provided in full to the Board for review, which show in pertinent part the following: a. On 7 July 2005, the applicant was seen by Dr. at the Behavioral Health Clinic for a 60-minute psychological evaluation session after self-referral for PTSD, what he wrote on the intake forms as his presenting problem. He endorsed combat exposure, receiving direct and indirect fire, returning fire, and witnessing combat-related fatalities. He complained of having nightmares upon his return from Iraq, then being stationed in Korea, where he began to feel more withdrawn and irritable, getting into fights and being demoted of April 2005. The objective assessment shows the current evidence was consistent with PTSD, chronic. A physical profile was generated and he was released to duty with limitations specified in the profile [not available for review]. Psychiatric medication refill and behavioral health treatment were arranged. b. On 27 July 2005, the applicant was seen at the Okubo Psychology Clinic for post- deployment anger management group (PDAG) participation. The diagnostic impression shows post-deployment adjustment problems. c. On 18 August 2005, the applicant was seen by Dr. at the Behavioral Health Clinic for a routinely scheduled follow-up appointment. His chief complaint is listed as PTSD. He had not been attending the PDAG group with regularity and was still dealing with anger. His DSM-IV diagnoses lists “unchanged.” An addendum to his physical profile was generated, recommending the applicant not serve 24-hours shifts, no overnight shifts, and no shifts longer than 10 hours. d. On 20 September 2005, the applicant was seen at the Behavioral Health Clinic for a follow-up for post-deployment issues. He advised he had a bad week with flashbacks from Iraq. He reported not yet receiving paperwork from Dr. so he does not have to deploy. He stated the medical board process had not yet started. The process was started while he was in Korea, but he didn’t have a copy of his medical records from Korea. He stated he wanted to be medically boarded out of the Army. He believed his medication was not working and that he believed his PTSD symptoms were getting worse. He reported one of the deciding factors in them deciding to medically board him while in Korea was an incident where he lost control and almost killed a Soldier while trying to break up a fight. The assessment shows his primary diagnosis as post- deployment exam. The plan shows it was discussed with the applicant that him coming to therapy with his desire to get out to the Army through a medical board were competing interests and his therapy would be less effective and maybe not effective at all. He was also advised that if he was not going to be medically boarded out of the Army that treatment would be more effective. The applicant stated he would go see Dr. later that day regarding receiving a profile to not deploy with his unit. The medical provider discussed this case with Dr. , who advised he had told the applicant he would need to have his command send him for evaluation regarding deployment and that he was not going to be medically boarded. The applicant was released without limitations and returned to duty. e. On 25 October 2005, the applicant was seen by Dr. at the Behavioral Health Clinic with a routinely scheduled follow-up appointment, where he indicated he was feeling better than before and was given a job he likes working with computers. A few days prior he was having an argument with his wife when the neighbors called the police and he was arrested and kept in jail for 2 days, with a follow-up court date on 18 November 2005. The assessment shows PTSD, resolving and the applicant was released to duty without limitations. 8. A DA Form 4856 (Developmental Counseling Form) shows the following: a. On 3 January 2006, the applicant was counseled by SSG for being not fit for duty. The applicant was reassigned to the 14th Engineer Battalion in August 2005 from Korea, where he had been diagnosed with PTSD. Since then, he was diagnosed with PTSD at the Madigan Army Medical Center, which prevented him from carrying a weapon and deploying with the rest of the battalion in support of OIF. b. SSG indicated he had spoken with the applicant’s doctor, Dr. , who informed him the applicant would not be recommended for an MEB at that time. With the battalion’s support of OIF, if the applicant’s condition did not improve, his chain of command would have no other option but to recommend him for separation under the provisions of Army Regulation 635-200, paragraph 5-17. 9. An additional service treatment record shows on 11 January 2006, the applicant was seen by Dr. at the Behavioral Health Clinic for a routinely scheduled individual psychotherapy session. The applicant endorsed limited but sustained improvements in his presenting symptoms; however, he reported feeling mistreated by his chain of command who were accusing him of malingering and threatening him with being “kicked out of the Army.” He endorsed anger in response to being issued letters of counseling and had thoughts of physically attacking the SSG who issued them, but denied intentions to act on those impulses. The assessment shows PTSD in partial remission and the applicant was released without limitations. 10. A second DA Form 4856 shows the applicant was again counseled by SSG for being unfit for duty on 3 March 2006. SSG indicated he spoke with Dr. again, and he was still not recommending the applicant to the MEB. Dr. was supporting the chain of command’s recommendation to request a discharge under Army Regulation 635-200, paragraph 5-17. If this request is honored, the applicant was advised he would be able to continue to receive care through the VA. 11. A DA Form 3822-R (Report of Mental Status Evaluation), dated 8 March 2006, shows that on the date of the form, the applicant underwent a mental status evaluation by Dr. , licensed clinical psychologist, where the following was found: a. The applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible, and met the retention requirements of Army Regulation 40-501, chapter 3. b. The remarks recount the applicant’s history of behavioral health and reflect his diagnosis as PTSD. The applicant had been treated with various modalities including pharmacotherapy, group therapy, and individual therapy with limited improvement in his chief complaints. He had been on physical profile since July 2005, deeming him unfit for deployment to combat zones as well as unfit for exposure to anything but the mildest stressors. These limitations were a manifestation of the applicant’s psychiatric illness and he suffered from symptoms of such severity that his ability to effectively perform his military duties was significantly impaired. c. Proposed treatments shows the applicant was currently enrolled in individual therapy and reported full compliance with his psychotropic prescription. There were no recommended precautions at the time and his current profile indicated modified duty. d. Fitness and suitability for continued service shows, all of the following: * return to duty with changed in duty status as indicated on his profile * psychiatrically cleared for any action deemed appropriate by command * process for expeditious separation in accordance with paragraph 5-17, Army Regulation 635-200, due to mental disorder resulting in disturbances of perception, thinking, behavioral control, and emotional stability of such severity as to impair his ability to effectively perform his military duties 12. On 22 March 2006, the applicant’s immediate commander notified him of his initiation of action to separate him with an honorable discharge under the provisions of Army Regulation 635-200, paragraph 5-17 because of other designated physical or mental condition. The reason for his proposed action was the applicant had been diagnosed with a mental disorder which prevented him from effectively performing his military duties. The applicant was advised of his right to consult with counsel, submit written statements in his own behalf, and entitlement to a hearing before an administrative separation board. 13. On 22 March 2006, the applicant acknowledged receipt of the notification of separation initiation and having been advised of his right to consult with counsel prior to making any election of rights. 14. On 3 April 2006, the applicant indicated he was advised by counsel of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights and personally made the choices indicated in the foregoing statement. The applicant indicated he was afforded the opportunity to consult with counsel and accepted the opportunity, he was advised by counsel of his rights, he waived his right to consideration of his case by an administrative separation board contingent upon his service characterization being honorable, waived appearance before a board, and did not submit statements in his own behalf. 15. On an unspecified date, the approval authority directed the applicant’s honorable discharge under the provisions of Army Regulation 635-200, paragraph 5-17, because of other designated physical or mental condition. 16. The applicant’s DD Form 214 shows he was honorably discharged on 24 April 2006, under the provisions of Army Regulation 635-200, paragraph 5-17, due to a condition, not a disability and was credited with 8 years, 6 months, and 24 days of net active service. Among his decorations, medals, badges awarded or authorized are the Army Commendation Medal (3rd Award), Global War on Terrorism Service Medal, Air Assault Badge, Korea Defense Service Medal, and Iraq Campaign Medal. 17. A VA Rating Decision, dated 31 October 2006, shows service-connection for PTSD, hearing loss, and knee pain were denied. 18. A VA Rating Decision, dated 12 February 2008, shows the following: * service-connection for PTSD was granted with a rating of 30 percent effective 25 April 2006 * service-connection for low back pain was denied * service-connection for vision loss was denied * a decision on entitlement to compensation for bilateral hearing loss was deferred 19. A VA Rating Decision, dated 29 January 2009, shows the applicant’s service- connected evaluation of PTSD, which was then currently 30 percent disabling, was increased to 70 percent effective 5 November 2008. 20. A VA Rating Decision, dated 13 March 2014, shows the applicant’s service- connected evaluation of PTSD with cannabis use disorder and alcohol use disorder, which was then currently 70 percent disabling, was increased to 100 percent effective 11 March 2014. 21. Numerous additional VA medical records, to include multiple C&P Exam reports for PTSD, dated January 2008, January 2009, and March 2014, have been provided in full to the Board for review. 22. 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. 23. Title 38, USC, 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. 24. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. 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. 25. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting a correction to his DD214 to reflect physical disability retirement in lieu of honorable discharge due to condition, not disability. The applicant reports experiencing PTSD while on active service. 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 enlisted into the Regular Army 1 October 1997; 2) The applicant deployed to Iraq from 29 March-22 November 2003; 3) On 22 March 2006, the applicant’s immediate commander notified him of his initiation of action to separate him with an honorable discharge under the provisions of Army Regulation 635-200, paragraph 5-17 because of other designated physical or mental condition. The reason for his proposed action was the applicant had been diagnosed with a mental disorder which prevented him from effectively performing his military duties; 4) The applicant was honorably discharged on 24 April 2006, under the provisions of Army Regulation 635-200, paragraph 5-17, due to a condition, not a disability and was credited with 8 years, 6 months, and 24 days of net active service. Among his decorations, medals, badges awarded or authorized are the Army Commendation Medal (3rd Award), Global War on Terrorism Service Medal, Air Assault Badge, Korea Defense Service Medal, and Iraq Campaign Medal. 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), military medical records provided by the applicant, and VA documentation were also reviewed. d. The applicant states he incurred PTSD in the line of duty due to his deployment to Iraq and should have been referred to IDES instead of being administratively separated for a condition, not a disability. The applicant was stationed in Korea shortly after his deployment to Iraq, and he reported being treated by behavioral health services for PTSD. Due to the absence of electronic military record at the time of the applicant’s active service to Korea, there is no available medical record for the applicant’s medical care at that time. The applicant did provide hardcopy medical documentation that he was diagnosed by a clinical psychologist with Chronic PTSD on 07 July 2005 at MAMC. He engaged in individual psychotherapy, group therapy, and was prescribed psychiatric medication for his symptoms of PTSD. He was also diagnosed with Depression. There was insufficient evidence the applicant was ever diagnosed with an Adjustment Disorder, while on active service. The applicant continued in behavioral health treatment for PTSD till he was discharged. He also provided a Report of Mental Status Exam (MSE) dated 08 March 2006. It was completed by the clinical psychologist the applicant was seeing for individual therapy. The reason for MSE was not completed, but the applicant was found to have the mental capacity to understand and participate in the proceedings. He was found to meet the retention requirements of Chapter 3, AR 40- 501. However, he was also reported to have been experiencing behavioral health symptoms shortly after his active combat deployment. His symptoms were consistent with PTSD and was reported to be experiencing suicidal ideation. He was diagnosed with PTSD and had engaged in multiple forms of behavioral health treatment with limited improvement. He was also reported to be on profile since July 2005 deeming him unfit for deployment to combat as well as unfit for exposure to anything but the mildest stressors. The applicant’s present condition was found to be as a result of his PTSD, and the severity of his condition caused his to be unable to effectively perform his military duties. He was returned to duty within the modifications of his profile, and he was recommended for a Chapter 5-17. There was insufficient evidence on the MSE or the corresponding medical record to support the decision of not referring the applicant to IDES despite the applicant being found unfit for military service as result of PTSD. e. A review of JLV provided evidence that applicant was seen at the VA shortly after his discharge from active service for PTSD. He has been awarded service-connected disability for PTSD initially at 30%, which has been increased to 100% in 2021. f. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant had a mitigating behavioral health condition, PTSD. The applicant incurred this condition as a result of his combat deployment, and he was engaged in multiple forms of behavioral health treatment for well over a year while on active service with little improvement. He was evaluated and found unfit for continued military service by a licensed behavioral health provider. There was insufficient evidence to support the decision to administratively separate the applicant for a non-disability condition. Therefore, it is recommended to refer the applicant to IDES for further evaluation to assess his suitability for physical disability retirement. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant had been diagnosed with PTSD while on active service, was provided multiple forms of behavioral health treatment, and found unfit for continued military service as the result of PTSD. (2) Did the condition exist or experience occur during military service? Yes, the applicant had been diagnosed with the following potentially with PTSD while on active service, was provided multiple forms of behavioral health treatment, and found unfit for continued military service as the result of his PTSD. (3) Does the condition experience actually excuse or mitigate the discharge? Yes, the applicant had a mitigating behavioral health condition, PTSD. The applicant incurred this condition as a result of his combat deployment, and he was engaged in multiple forms of behavioral health treatment for well over a year while on active service with little improvement. He was evaluated and found unfit for continued military service by a licensed behavioral health provider. There was insufficient evidence to support the decision to administratively separate the applicant for a non-disability condition. Therefore, it is recommended to refer the applicant to IDES for further evaluation to assess his suitability for physical disability retirement. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical review the Board concurred with the advising official finding sufficient evidence to support referral to IDES for further evaluation to assess his suitability for physical disability retirement. Furthermore, the Board agreed with the medical opine that found mitigating behavioral health condition, PTSD. The applicant incurred this condition as a result of his combat deployment, and he was engaged in multiple forms of behavioral health treatment for well over a year while on active service with little improvement. Based on this, the Board granted partial relief. ? 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by directing the applicant be entered into the Disability Evaluation System (DES) and a Medical Evaluation Board concerned to determine whether the applicant’s conditions(s), met medical retention standard at the time-of-service separation. a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned may be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB if requested by or agreed to by the PEB president. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the DES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to physical disability retirement in lieu of honorable discharge due to condition, not a disability. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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. 3. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (MOS) Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets 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 office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. c. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 5. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-17 states a service member may be separated for other designated physical or mental conditions that potentially interfere with assignment to or performance of duty. not amounting to disability under Army Regulation 635-40 and excluding conditions appropriate for separation processing under paragraphs 5-11 (Separation of personnel who did not meet procurement medical fitness standards) or 5-13 (Separation because of personality disorder) Such conditions may include, but are not limited to, the following: * 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 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 a 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. Members may be separated for physical or mental conditions not amounting to disability sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. 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. A Soldier being separated under this section will be awarded a character of service of honorable, under honorable conditions, or an entry-level separation. 7. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 8. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 9. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 10. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000392 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1