IN THE CASE OF: BOARD DATE: 5 October 2023 DOCKET NUMBER: AR20230003442 APPLICANT REQUESTS: in effect, a physical disability separation or retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders C-12-528467, 14 December 2005 * Orders 06-011-00031, 11 January 2006 * Orders 08-258-01053, 14 September 2008 * Orders 09-120-00022, 30 April 2009 * Department of Veterans Affairs (VA) rating decision letter, 8 December 2021 * Department of Defense (DoD) Military Service Information, 13 October 2022 * VA summary of benefits letter, 20 November 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he is permanently and totally disabled due to his service connected post-traumatic stress disorder (PTSD) and undiagnosed traumatic brain injury (TBI). He joined the Reserves on 29 November 2004. After the first year serving in the Reserves, he started experiencing worsened PTSD and TBI symptoms that disturbed his ability to perform. During that year, he was allowed to come in during a weekday when drill was not in session to help aid his worsening mental health problems. After a while his mental health got so bad that he was unable to perform duty at those drills as well. He was then ordered on 15 December 2005 to stay home and wait for a medical review board for a medical discharge. He was forgotten about and was never contacted for the medical board. He had not returned to duty after 15 December 2005 until 11 May 2009. He was then given an order sheet of discharge status of honorable. He had found in his military documents the DoD military occupational specialty (MOS) codes for his reserve service where from the dates he listed about are coded 920 (not occupationally qualified). 3. The applicant underwent a medical examination to enlist on 12 May 2001. His DD Form 2808 (Report of Medical Examination) shows he was found qualified for service, with a waiver for being underweight, and assigned a physical profile of 111111. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 4. The applicant enlisted in the United States Army Reserve on 12 May 2001 for a period of 8 years in the delayed entry program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 3 years on 7 September 2001. 5. The applicant completed his required training and was assigned the MOS 11B (infantryman). He was assigned to Korea from 7 March 2002 through 6 March 2003. 6. The applicant was reassigned to Fort Riley, KS. He was deployed in support of Operation Iraqi Freedom (Iraq) on 15 August 2003. He was awarded the Combat Infantryman Badge effective 31 October 2003 for satisfactorily performing duty while assigned to an infantry unit engaged in active ground combat. On 15 September 2004, he returned from deployment. 7. The applicant’s enlisted record brief, dated 3 December 2003, shows his PULHES as 311111. 8. The applicant was honorably released from active duty for completion of required active service and transferred to the Standby Reserve on 29 December 2004. He was credited with 3 years, 3 months, and 23 days net active service. He was retained in service 114 days for the convenience of the government. His separation code was MBK, and his reentry code was 1. 9. Orders C-12-528467 show the applicant was voluntarily transferred from the Standby Reserve to the Ready Reserve effective 13 December 2005. It lists his expiration of term of service as 11 May 2009. 10. Orders 06-011-00031, dated 11 January 2006, show the applicant was involuntarily transferred between units within the command for accounting purposes. 11. A search of the Army Human Resources Command (AHRC) Soldier Management System (SMS) shows he was assigned a physical profile of 211113 in February 2007. His physical capacity shows no significant limitations, and hearing, vision, upper extremities, lower extremities, show no limitations. Psychiatric rating shows significant limitations. 12. Orders 08-258-01053, dated 14 September 2008, also show the applicant was involuntarily transferred between units within the command for accounting purposes. 13. Orders 09-120-00022, dated 30 April 2009, show the applicant was discharged from the Army Reserve effective 11 May 2009 under the provisions of Army Regulation (AR) 135-178. 14. The applicant provided: a. A VA rating decision letter, dated 8 December 2021, showing the applicant was rated at 50% for PTSD with bipolar disorder, marijuana, and alcohol abuse with additional TBI with headaches. b. A DoD Military Service Information printout, dated 13 October 2022, with entries highlighted showing DoD Occupation Codes of: * 950 (enlisted - not occupationally qualified) for 15 December 2005 and 31 December 2005 * 500 (enlisted - personnel, general) for 31 January 2006 * 10 (enlisted - infantry, general) for 31 October 2006 and 7 May 2009 c. A VA summary of benefits letter, dated 20 November 2022, stating he has a combined service-connected evaluation of 70 percent. He is being paid at the 100 percent rate because he is unemployable due to his service-connected disabilities. The effective date of when he became totally and permanently disabled due to his service- connected disabilities is 7 December 2010 15. 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. 16. Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 17. 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. 18. MEDICAL REVIEW: a. Background: The applicant is requesting, in effect, a physical disability separation or retirement. The applicant indicated PTSD and TBI are related to his request. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * The applicant enlisted in the United States Army Reserve on 12 May 2001 in the delayed entry program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 3 years on 7 September 2001. * He was deployed in support of Operation Iraqi Freedom (Iraq) on 15 August 2003. He was awarded the Combat Infantryman Badge effective 31 October 2003 for satisfactorily performing duty while assigned to an infantry unit engaged in active ground combat. On 15 September 2004, he returned from deployment. * The applicant was honorably released from active duty for completion of required active service and transferred to the Standby Reserve on 29 December 2004. * Orders C-12-528467 show the applicant was voluntarily transferred from the Standby Reserve to the Ready Reserve effective 13 December 2005. It lists his expiration of term of service as 11 May 2009. * He was transferred between units numerous times for accounting purposes (see records). * He was assigned a physical profile of 211113 in February 2007. * Orders 09-120-00022, dated 30 April 2009, show the applicant was discharged from the Army Reserve effective 11 May 2009 under the provisions of Army Regulation (AR) 135-178. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), DD Form 214, documents from his service record and separation, as well as VA rating decision letter, VA summary of benefits letter, several orders from his time in the service, and DOD military service information. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant asserts that he is permanently and totally disabled due to his service-connected post-traumatic stress disorder (PTSD) and undiagnosed traumatic brain injury (TBI). He states that his mental health deteriorated, and he was told to stay home and wait for a medical review board for a medical discharge. He noted not returning to duty between 2005 and 2009 and was later given an order sheet of discharge with Honorable status. He marked on his application that he is interested in changing his separation code; the presumption is that he is asking for a medical discharge. e. The applicant underwent a medical examination to enlist on 12 May 2001. His DD Form 2808 (Report of Medical Examination) shows he was found qualified for service, with a waiver for being underweight, and assigned a physical profile of 111111. During his deployment to Iraq, the applicant’s enlisted record brief, dated 3 December 2003, shows his PULHES as 311111. The applicant’s time in service predates consistent use of electronic health records (EHR) by the Army, hence no EHRs are available for review from this time in active service. His service record and supporting documents did not contain his service treatment records (STR). A search of Army Human Resources Command (AHRC) Soldier Management System (SMS) shows he was assigned a physical profile of 211113 in February 2007. His physical capacity shows no significant limitations, and hearing, vision, upper extremities, lower extremities, show no limitations. Psychiatric rating shows significant limitations. f. The applicant has been engaged with mental health care through the VA since 2005, while he was still part of the Reserves. He was seen for a compensation and pension evaluation (C&P) 3 February 2005. During this evaluation he was diagnosed with PTSD and cannabis and alcohol abuse secondary to PTSD. A second C&P took place in 2008, indicating he’d originally received 50% and was now claiming bipolar disorder as well. During his 12 May 2008 C&P he was diagnosed with PTSD, Bipolar disorder, and cannabis abuse. The assessing provided stated, “The veteran's bipolar disorder, in my opinion, is secondary to military ptsd and active duty service history.” A VA Rating Decision (obtain through VBMS) indicated that the applicant was service connected for PTSD and bipolar disorder, with cannabis and alcohol abuse when he was reassessed in 2008. In addition, this form shows he was initially awarded 50% service connection for PTSD effective 30 December 2004. He was also listed as being on an antipsychotic medication for treatment. g. Per the applicant’s VA EHR, the applicant is 50% service connected for PTSD (70% in total), with his VA rating letter stating the PTSD was assessed as including bipolar disorder, marijuana, and alcohol abuse with additional TBI with headaches. The PTSD and TBI with headaches were both specifically discussed as service connected. Effective 7 December 2010 is when he was declared permanently disable due to his service-connected disabilities. He has been diagnosed with PTSD, anxiety disorder, bipolar disorder, major depressive disorder, alcohol dependence, cannabis dependence, methamphetamine use disorder, as well as psychosocial stressor and conditions (not mental disorders), to include unspecified housing or economic circumstance, lack of housing, insomnia, nervousness, irritability, and unemployment. The applicant has engaged in outpatient individual and group care, medication management, and numerous inpatient and residential rehabilitation treatment program (RRTP) stays (at least 9). h. Based on the available information, it is the opinion of the ARBA BH Advisor that there is sufficient evidence to support the applicant had a condition or experience that warrants a referral to the DES. There is evidence of a P3 psychiatric profile in his records from 2007, indicating the Army was aware of severe mental health concern. In addition, his VA records during the same time period indicate a diagnosis of PTSD, as well as bipolar disorder, to include indication of mania. Hence, there is evidence the applicant was diagnosed with med boardable conditions, was on a psychiatric profile, and had at least one condition that would have rendered him unfit for duty (bipolar disorder with manic episodes indicated; indicated in his record as early as 2005). Per AR 40-501, 3-33, bipolar disorder is disqualifying when there is any history of a manic episode. In addition, his PTSD was directly related to his time in Iraq per his treatment records and C&P evaluations. Per his attestation on his application, he noted it impacted his functioning to the point where he was unable to drill for several years. Per AR 40-501, 3-33, trauma and stressor related disorders are disqualifying when there is persistence or recurrence of symptoms that interfere with duty performance and necessitate limitation of duty or duty in a protected environment. Hence, it is the opinion of the BH Advisor that his case should be referred to the DES for further disposition and evaluation of his claim of disability. ? BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of requests for changes to discharges. The Board concurred with the conclusion of the ARBA BH Advisor that the evidence confirms the applicant had a psychiatric profile that should have been a basis for referring him to the Disability Evaluation System. The Board determined the applicant should now be referred to the Disability Evaluation System. 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 referring his records to the Office of The Surgeon General for review to determine if he should have been referred to the Disability Evaluation System prior to his discharge. a. If a review by the Office of The Surgeon General determines the evidence supports referral to the Disability Evaluation System, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any diagnoses identified as having not met retention standards prior to his discharge. b. In the event that a formal Physical Evaluation Board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should be retired or discharged for disability, these proceedings serve as the authority 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 any relief without benefit of the review described above. 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 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. 3. 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. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 5. Army Regulation (AR) 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations) establishes policies, standards, and procedures governing the administrative separation of certain enlisted soldiers of the Army National Guard of the United States and the United States Army Reserve as directed by Department of Defense Directive 1332.14, December 1993 Subject: Enlisted Administrative Separations. 6. 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 an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an 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 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. 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. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 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. 10. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 11. Section 1556 of Title 10, U.S. Code, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003442 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1