IN THE CASE OF: 
BOARD DATE: 20 September 2023 
DOCKET NUMBER: AR20230002293 


APPLICANT REQUESTS:  

•correction of his DA Form 199-1 (Informal Physical Evaluation Board (PEB)Proceedings) to show he was found fit for continued military service

•personal appearance before the Board



APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record)

•DA Form 3822 (Report of Mental Status Evaluation), 10 November 2022



FACTS: 

1.The applicant states he was found unfit for service but after reevaluation, he wasfound fit for service. He contends that he does not remember receiving notification ofseparation until 2021 and he took steps to remain in the service. He was notified byemail but he did not have access to the email messages at the time and only recentlydiscovered the existence of the messages. He was found fit for service and he wouldlike the opportunity to return to service and prove it because he would like to continueserving his country in any way possible.

2.The applicant enlisted in the U.S. Army Reserve (USAR) on 12 November 2015.

3.On 21 March 2022, the applicant was found unfit for further military service due tomajor depressive disorder. The PEB indicated the following:

a.NDR (Non-Duty Related):  The Soldier first sought treatment for behavioral healthon 18 August 2020 at a Department of Veterans Affairs medical center. This condition was caused by personal and occupational stressors. The condition is not compensable because at the time the Soldier was diagnosed with this condition, the Soldier was not in an active-duty status for more than 30 days or entitled to base pay, and there is no line of duty investigation for this condition.  

b.Additionally, there is no evidence within the Soldier's available case file thatindicates military service has aggravated the condition. The Soldier is mentally competent for pay purposes and able to understand and participate in the PEB proceedings. In accordance with Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), this Soldier is unfit because the DA Form 3349, Physical Profile Record, Section 4, functional activity limitations associated with this condition, make this Soldier unable to reasonably perform required duties. 

4.The DA Form 199 shows in section IX (Soldier's Election) the applicant failed tomake an election (i.e. concur, not concur, submit a written appeal, request formalhearing) within the time prescribed.

5.A memorandum from the U.S. Army PEB addressed to the U.S. Army PhysicalDisability Agency, dated 4 April 2022, indicates the applicant's DA Form 199 wascompleted on 21 March 2022 but the applicant failed to make an election. The ArmyReserve Medical Management Center (AR-MMC) has provided email traffic withattempts to obtain an election from the Soldier.  The email traffic was uploaded to theapplicant's case file providing the attempts to try and collect the DA Form 199 electionfrom AR-MMC point of contact, Soldier, and unit. Reserve Component failed to providedocumentation within a reasonable time frame and therefore is outside of mandatedrequirements to properly adjudicate the case.

6.On 16 October 2022, the applicant's enlistment was extended for a period of oneyear under the authority of Army Regulation 140-111 (USAR Reenlistment Program),Table 3-1, Rule M, which pertains to Soldiers not eligible for reenlistment and thedisqualification is under adjudication pending a final determination or may be waivable.

7.A DA Form 3822, dated 10 November 2022, shows the applicant underwent acommand directed behavioral health (BH) evaluation. The BH provider indicated theapplicant did not require duty limitations due to BH reasons and that he met BH medicalretention standards in accordance with Army Regulation 40-501 (Standards of MedicalFitness). The BH provider further stated the following:

SM [service member] appears to be FFD [fit for duty] at this time and no restrictions recommended. SM appeared to have had a sheltered upbringing and has struggled at times in his ability to socially adapt. SM did engage in behavioral health treatment this year and recommendation is made for SM to continue therapy as needed. There does not appear to be a behavioral health condition at this time that would require referral to IDES [Integrated Disability Evaluation System] for MEB [Medical Evaluation Board]. Current profile will be expired. 

8.Orders issued on 25 July 2023 directed the applicant's involuntary separation fromthe USAR effective 1 August 2023.
9.MEDICAL REVIEW:

a.The applicant is applying to the ABCMR requesting a correction to his DA Form199-1 (Informal Physical Evaluation Board (PEB) Proceedings) to show he was found fitfor continued military service.
b.The specific facts and circumstances of the case can be found in the ABCMRRecord of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the USAR on 12 November 2015; 2) On 21 March 2022, the applicant was found unfit for further military service due to major depressive disorder; 3) On 16 October 2022, the applicant's enlistment was extended for a period of one year under the authority of Army Regulation 140-111 (USAR Reenlistment Program), Table 3-1, Rule M, which pertains to Soldiers not eligible for reenlistment and thedisqualification is under adjudication pending a final determination or may be waivable;4)Orders issued on 25 July 2023 directed the applicant's involuntary separation fromthe USAR effective 1 August 2023.
c.The Army Review Board Agency (ARBA) Medical Advisor reviewed the supportingdocuments and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA), Military electronic Health Record System (MHS) GENESIS, Informal Physical Evaluation (PEB) Proceedings (DA Form 199), and VA’s Joint Legacy Viewer (JLV) were also examined. 

d.The applicant states he was found unfit for service, but after reevaluation, he wasfound fit for service. He contends that he was not notified of the results of his PEB. The applicant was seen at the VA behavioral health services while attending drill in August 2020 because of depression and suicidal ideation. He reported a history of depression and suicidal behavior since February 2019 following a relationship ending and other stressors. Following a three-day inpatient psychiatric inpatient VA hospital stay in August 2020, the applicant was placed on a psychiatric profile for depression, and he was encouraged to continue in psychotherapy and take the psychiatric medication prescribed to him. The applicant was seen again by behavioral health services in July 2021 for a Command Directed Behavioral Health Evaluation. At that time, the applicant was still reporting significant depression and anxiety. The applicant stated he had not engaged in the previously recommended treatment plan following his discharge. He denied any additional attempt to harm himself, but he did report continued fleeting suicidal ideation. Due to the severity of the applicant’s symptoms and his lack of involvement in treatment, he was referred to Medical Evaluation Board, and his profile was extended. However, it was noted the applicant had potential to be successful in the military, if he engaged in treatment.  
e.As the result of his PEB evaluation, the applicant was determined in April 2022 tobe unfit for military service because of major depressive disorder. The applicant nor his Command signed the results of this evaluation. The applicant was seen again for a Command Directed Mental Health Evaluation in November 2022. The applicant’s Commander accompanied him for this evaluation and stated the applicant had improved significantly over the last year and was working well within the unit. The applicant stated he had engaged in therapy through a program for veterans, and he has seen significant improvements. He denied experiencing depressive or anxiety symptoms for many months, and he denied any suicidal thoughts or behaviors. The applicant was not diagnosed with a mental health condition, was not recommended for a psychiatric profile, and he was found fit for full duty. 
f.Based on the available information, it is the opinion of the Agency BH Advisor thatthere is sufficient evidence available to support a referral to IDES. At this time, the applicant does appear to warrant an additional evaluation to properly assess if he is suitable for continued service.  

Kurta Questions 
(1)Did the applicant have a condition or experience that may excuse or mitigate thedischarge status? No. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence available to support a referral to IDES. At this time, the applicant does appear warrant an additional evaluation to properly assess if he is suitable for continued service. 
(2)Did the condition exist or experience occur during military service?  NA
(3)Does the condition experience actually excuse or mitigate the discharge? NA

BOARD DISCUSSION: 

1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that partial relief was warranted. . The Boardcarefully considered the applicant's record of service, documents submitted in supportof the petition and executed a comprehensive and standard review based on law, policyand regulation. Upon review of the applicant’s petition, available military records and themedical review the Board concurred with the advising official finding sufficient evidenceavailable to support a referral to IDES. At this time, the applicant does appear to warrantan additional evaluation to properly assess if he is suitable for continued service.Evidence in the record show the applicant was found to be unfit for military servicebecause of major depressive disorder. The Board agreed based on the medical opineand the preponderance of evidence, the Board granted partial relief to refer theapplicant to DES.
2.The Board determined DES compensates an individual only for service incurredcondition(s) which have been determined to disqualify him or her from further militaryservice.  The DES has neither the role nor the authority to compensate servicemembers for anticipated future severity or potential complications of conditions whichwere incurred or permanently aggravated during their military service; or which did notcause or contribute to the termination of their military career.

3.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 equitabledecision.  As a result, a personal appearance hearing is not necessary to serve theinterest 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 that the evidence presented was sufficient to warrant arecommendation for partial relief.  As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected by directingthe applicant be entered into the Disability Evaluation System (DES) and a MedicalEvaluation Board concerned to determine whether the applicant’s conditions(s), metmedical 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 separatedunder 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 correction of his DA Form 199-1 (Informal PhysicalEvaluation Board (PEB) Proceedings) to show he was found fit for continued militaryservice.

Microsoft Office Signature Line...
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. 


REFERENCES: 

1.Army Regulation 40-501 provides information on medical fitness standards forinduction, enlistment, appointment, retention, and related policies and procedures.Chapter 3 lists the various disqualifying medical conditions and/or physical defectswhich may render a Soldier unfit for further military service and which fall below thestandards required. To be deployable, Soldiers should be ready to deploy within 72 hours of receipt of an assigned mission as defined in Army and Department of Defense policy. These medical conditions and/or physical defects, individually or in combination, are those that have met the clinical or administrative medical retention determination point (MRDP) and: 
 
 a.  Significantly limit or interfere with the Soldier’s performance of their duties (either basic Soldier skills or military occupational specialty specific) as substantiated by the Soldier’s commander or supervisor.  
 
 b.  Require medication for control that requires frequent monitoring by a physician due to debilitating or serious side effects, medical care, or hospitalization with such frequency as to interfere with the satisfactory performance of duty.  
 
 c.  Restrict performance of any of the profile functional activities listed in Section 4 of DA Form 3349; have met a clinical MRDP; or have been temporarily profiled for more than 365 days, meeting the administrative MRDP.  
 
 d.  May compromise or aggravate the Soldier’s health or well-being if they were to remain in the military Service. This may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring.  
 
 e.  May compromise the health or well-being of other Soldiers (for example, a carrier of communicable disease who poses a health threat to others).  
 
 f. May prejudice the best interests of the U.S. Government if the individual were to remain in the military Service. 
 
2.  DoD Instruction 1332.18, Appendix 2 to Enclosure 3, paragraph 2.a states a Service member will be considered unfit when the evidence establishes that the member, due to disability, is unable to reasonably perform duties of his or her office, grade, rank, or rating, including those during a remaining period of Reserve obligation. 
 
3.  Army Regulation 635-40, chapter 5, section I (Policies for Determining Fitness and Permanence and Stability of Unfitting Conditions) states that in making a determination of unfitness, the following criteria may be included in the assessment: 
 
 a.  The medical condition represents a decided medical risk to the health of the Soldier or to the welfare of other Soldiers were the Soldier to continue on active duty or in an active Reserve status.   
 
 b.  The medical condition imposes unreasonable requirements on the Army to maintain or protect the Soldier.   
 
 c.  The Soldier’s established duties during any remaining period of Reserve obligation. 
 
4.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 
 
5.  Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by 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 ABCMR applicants (and/or their counsel) prior to adjudication. 
 
//NOTHING FOLLOWS//