IN THE CASE OF: BOARD DATE: 26 September 2023 DOCKET NUMBER: AR20230004948 APPLICANT REQUESTS: through Counsel, reconsideration of his prior request for physical disability retirement in lieu of honorable administrative discharge due to personality disorder. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Civil Cover Sheet, 10 November 2022 • Complaint, 10 November 2022 • Summons in a Civil Action, 10 November 2022 • Joint Motion for Voluntary Remand and Stay of Proceedings, 29 March 2023 • Order, 5 April 2023 • DD Form 149 (Application for Correction of Military Record) • Counsel’s letter • Counsel’s brief • exhibits labeled A through J FACTS: 1. This case comes before the Army Board for Correction of Military Records (ABCMR) by order of the U.S. District Court for the District of Columbia, issued on 5 April 2023. a. On 10 November 2022, the applicant filed a complaint against the Department of Defense, Secretary of the Army, and the ABCMR for relief from the final determination of the Army and the ABCMR regarding his medical and discharge status. b. On 29 March 2023, both parties submitted a joint motion for voluntary remand and stay of proceedings, requesting the Court remand the case to the Secretary of the Army with instructions for the ABCMR to reconsider the applicant’s request to amend his records to reflect a permanent medical retirement. c. On 5 April 2023, the U.S. District Court for the District of Columbia ordered the case remanded to the ABCMR and stayed the case pending the remand. The applicant was given 30 days after the remand and stay order to submit supplemental matters to the ABCMR and the ABCMR was given 150 days within which to review and reconsider his application and render a decision. Both parties were ordered to file a joint status report by 31 August 2023, updating the Court on the status of proceedings on remand. 2. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's cases by the ABCMR in Docket Number AR20090005412 on 1 September 2009, and Docket Number AR20180012055 on 8 December 2020. 3. Counsel states: a. This case arises from the failure of the Army to honor its duty, embodied in statute, regulation, and 247 years of Army history, that it not abandon its wounded. The applicant is a combat veteran who served honorably in the Army from 29 September 1999 until 30 September 2005. The applicant was deployed to Iraq in March 2004 with the 1st Cavalry Division. Within four days of his arrival, he and his unit were engaged in a historic ambush in Sadr City where he sustained a bullet wound to the left shoulder and another to his upper arm. The applicant was awarded a Purple Heart, the Army Commendation Medal with V Device, and the Combat Infantryman Badge for his honorable service in Iraq. The applicant developed Post-Traumatic Stress Disorder (PTSD) as a result of these traumas suffered in the line of duty (LOD). b. However, despite overwhelming evidence demonstrating the applicant incurred PTSD from combat, he was administratively separated from the Army for an alleged "personality disorder," without retirement or benefits. Generally, when the Army determines that a Soldier has a disability leaving them unfit for continued military service, the Soldier is referred into the Disability Evaluation System (DES) process in order to determine whether they should be medically retired. Disabilities warranting DES processing include panic disorders, such as PTSD, incurred in the LOD. c. For 20 years, the applicant sought recourse from the ABCMR to correct his record reflecting a PTSD diagnosis, but to no avail. In failing to recognize that the applicant merited a medical retirement for his duty-limiting PTSD, the Army failed to honor its duty to him, that it not abandon him after he was wounded in service to his country. d. This case is governed by the "liberal consideration" standard; Tile 10 U.S.C. 1552(h); Doyon v. United States, 58 F.4th 1235, 1244 (Fed. Cir. 2023). Therefore, the ABCMR must review the applicant’s case under the liberal consideration standard when adjudicating his request that his record be corrected to reflect a medical retirement. e. To correct the Army's error, the applicant applied for relief from the ABCMR under Title 10 U.S.C., section 1552(a)(l), which allows the Secretary of the Army to change the record of any service member to correct an error or remove an injustice, including being discharged without proper disability processing. In his application to the ABCMR, the applicant requested the ABCMR award him medical retirement. f. The ABCMR sought a recommendation from the Army Review Boards Agency (ARBA) to determine how to proceed with the applicant’s discharge. ARBA, which oversees the ABCMR, issued an advisory opinion in which they determined that evidence presented by the applicant indicated "there is no evidence to support the personality disorder diagnosed. It is more likely than not that his adjustment disorder symptoms were precursors to development of PTSD." As a result, the ABCMR granted the applicant "partial relief' in the form of referral to the Office of the Army Surgeon General for review to determine whether the disability evaluation he received from the Army at the time of discharge accurately depicted his conditions as they existed at the time and whether he should be referred into the DES for disability processing. g. Yet, in direct conflict with ARBA's prior finding that the evidence did not support the applicant having a personality disorder, but rather that he had PTSD, the ABCMR neither corrected the applicant’s military record, nor referred him into the DES for medical retirement. Instead, the ABCMR improperly abdicated its authority to correct records under Title 10 U.S.C., section 1552 to the Office of the Army Surgeon General. On 2 February 2022, the applicant was informed that the Office of the Surgeon General upheld his discharge for personality disorder. As a result, the ABCMR made no change to the applicant’s discharge. h. After being denied the appropriate remedy, the applicant subsequently filed a lawsuit in the United States District Court of District of Columbia ("DOC"), alleging that the ABCMR's decision was arbitrary, capricious, unlawful, and factually unsupported and seeking disability requirement pay under the Administrative Procedure Act (Exhibit A). The Army elected a voluntary remand and the parties jointly moved to stay the proceeding. The DOC granted the parties' motion and remanded this matter pursuant to the provisions set forth in his Order (Exhibit B) back to the ABCMR. i. As set forth in the court's order, the ABCMR shall at least, in part: (1) reconsider fully all claims asserted by plaintiff, including any claims for permanent disability retired pay pursuant to Title 10 U.S.C., section 1201 and discharge characterization, under applicable standards; (2) consider plaintiffs’ claims based upon the administrative record and any further evidence that plaintiff may submit, all of which shall be considered by the Board and be made part of the Board record; and (3) consider expeditiously requesting new medical advisory opinion(s) as necessary to address the issues set forth in the complaint and plaintiffs submission of materials to the Board. The applicant submits this brief in support of his application for the correction of his military record paralleling the DOC complaint, now with key evidence for the Board's consideration cited and attached. (Exhibit B). j. The Board is bound by Title 10 U.S.C., section 1552 and guidance from the Department of Defense, including respective Memoranda for Secretaries of Military Departments dated 3 September 2014 (the Hagel Memo), 24 February 2016 (the Carson Memo), and 25 August 2017 (the Kurta Memo) (together, "Department of Defense (DOD) Guidance"). Title 10 U.S.C, section 1552 and the DOD Guidance require the Board to give "liberal consideration" to servicemembers seeking "discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions," including PTSD. The requirement for "liberal consideration" applies to an application for medical retirement based on PTSD. Doyon v. United States, 58 F.4th 1235, 1244 (Fed. Cir. 2023). k. The requirement for liberal consideration extends to all evidence, including civilian medical opinions and the award of Department of Veterans Affairs (VA) disability benefits, as well as evidence beyond treatment records, including "changes in behavior; requests for transfer to another military duty assignment; deterioration in work performance; inability of the individual to conform their behavior to the expectations of a military environment; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; unexplained economic or social behavior changes; [or] relationship issues." When an applicant submits medical opinions from post discharge civilian providers, the Board must "wrestle with" and provide an "analysis of the evidence in writing" as to "why these medical opinions should not be followed." Mem. Op. and Order, LaBonte v. United States, No. 18-1784C (Fed. Cl. 2 May 2023), ECF No. 109 at 10- 11. If the Board reaches a conclusion which contradicts the opinion of medical experts submitted by the applicant, they must "at a minimum address the evidence...and explain why the judgments of those experts are not worthy of respect." Id. at 11. l. DoD Guidance further instructs the Board that "[t]he veteran's testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigated the discharge." Additionally, DoD Guidance instructs the Board that "[a] diagnosis made by a licensed psychiatrist or psychologist that [PTSD] existed during military service will receive liberal consideration" and that "conditions or experiences [such as symptoms of PTSD] that may reasonably have existed at the time of discharge will be liberally considered as excusing or mitigating the discharge." m. When the Board is reviewing a claim "involving diagnosed, undiagnosed, or misdiagnosed [traumatic brain injury]TBI or mental health conditions," DoD Guidance forbids the Board from "condition[ing] relief on the existence of evidence that would be unreasonable or unlikely under the specific circumstances of the case." And when the record contains conflicting evidence as to the servicemember's condition, DoD Guidance requires the Board to liberally construe the evidence as supporting the diagnosis claimed by the servicemember, including PTSD. The lack of contemporaneous documentation of a particular condition or diagnosis is not dispositive and the Board is not permitted to negate the relevance of evidence derived "years after the injury and its follow-on mental and physical effects." LaBonte, ECF o. 109 at 11. The Army cannot "evade its legal obligations due to its own failure to document properly" a soldier 's injuries or illnesses "at the time they were incurred." Id. To do so would "run afoul of the ' liberal consideration' standard." Id. n. The applicant is one of thousands of service members affected by the military's improper use of personality disorder diagnoses. Improper personality disorder diagnoses, in violation of the DOD’s own policies and procedures, have been a catch-all discharge excuse across the armed services for many years. As early as 2007, bills were introduced in the House and Senate that sought to put a moratorium on all personality disorder discharges until DOD conducted a review of how the policies and procedures surrounding such diagnoses were implemented. There has been extensive news coverage of this issue, with rationales for these misdiagnoses ranging from purely financial motivations to retaliation against those who report sexual misconduct. In 2012, a report by the Veterans Legal Services Clinic at Yale Law School confirmed the military's "systemic personality disorder discharge problem" through extensive analysis of documents released based on Freedom of Information Act (FOIA) requests. o. As explained below, the Army discharged the applicant for "personality disorder" despite the lack of any evidence, diagnostic or otherwise, to support that determination. The evidence available then, corroborated by in-service and post-service treatment, shows that the applicant had PTSD. He thus should have been medically retired instead of administratively separated. p. The applicant developed PTSD during his Iraq deployment in April 2004, necessitating his discharge from service in September 2005. Department of Defense Instruction (DODI)1332.38 E4.13. l provides that throughout the DES, the ''terminology and diagnostic concepts…are in consonance with the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (DSM-IV)." According to DSM-IV, Text Revision (TR), the version of the DSM-IV in effect at the time of the applicant’s discharge, PTSD is an appropriate diagnosis where: 1. "The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others;" and 2. "The person's response involved intense fear, helplessness, or horror." q. PTSD is thus a mental health disorder that can develop after an individual experiences, witnesses, or undergoes a traumatic event, often one that causes or threatens grave physical harm or death to that person or others involved in the incident. r. Service personnel who suffer from PTSD exhibit a wide range of symptoms. Those afflicted may suffer crippling flashbacks that cause them to replay the traumatic event or events, while others may tend to avoid places, people, or other things that may remind them of the triggering event, thus compromising the daily routine of ordinary life. Many may experience trouble controlling emotions and exhibit abnormal irritability or anger to those around them. Victims of PTSD also may have difficulty concentrating, have long-term or short-term memory loss, swing from pangs of grief to emotional numbness, suffer from depression, or experience sleep disorders. These and other symptoms may last for minutes, or continue for days, weeks, or years. s. A veteran suffering from PTSD faces daunting obstacles as a result of his or her injury, including, but not limited to: difficulty readjusting to work or maintaining employment; difficulty interacting with others; feelings of estrangement or detachment; nightmares and sleep deprivation; impaired functioning; occupational instability; memory disturbances; and family, parenting or marital discord. Early treatment of PTSD can help lessen the severity and symptoms of PTSD and help those veterans afflicted by it lead healthy and fulfilling lives. t. A personality disorder, on the other hand, is defined under DSM-IV-TR as an "enduring pattern of inner experience and behavior that deviates markedly from the expectations that manifests in at least two of the following areas: (1) cognition (i.e., ways of perceiving and interpreting self, other people, and events) ; (2) affectivity (i.e., the range, intensity, !ability, and appropriateness of emotional response); (3) interpersonal functioning ; and (4) impulse control." The pattern of behavior, according to DSM-IV-TR, must be "inflexible and pervasive across a broad range of personal and social situations," cause clinically significant distress, and be "stable and of long duration" with "onset [that] can be traced back at least to adolescence or early adulthood." Additionally, according to DSM-IV-TR, the enduring pattern must not be better accounted for as a manifestation or consequence of another mental disorder. Similarly, Army Regulation 635-200 (Active Enlisted Administrative Separations), paragraph 5-13(a) defines a personality disorder as a "deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier's ability to perform duty." u. The applicant’s records demonstrate that he suffered from PTSD manifesting while in service after the siege of Sadr City and persisting after his discharge; evidence which the Army improperly declined to consider in failing to submit him to DES processing. Furthermore, the Army misdiagnosed him with a personality disorder in direct contravention to documented evidence demonstrating his PTSD condition was incurred in the line of duty. v. The applicant was unfit and should have been medically retired with at least a 50 percent rating. Title 10 U.S.C., section 1201, DODI 1332.38, and Army Regulations 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and 635-200 require that Soldiers who appear unable to reasonably perform the duties of their office, grade, rank or rating due to a physical disability incurred in the LOD, like PTSD, be afforded DES processing. DoDI 1332.38 E2.1.25 and E4. 13.1.4. (the term physical disability includes mental disease but not inherent defects such as personality disorders). See also Army Regulation 635-200, paragraph 5-13c (separation for personality disorder is not appropriate where separation is warranted under Army Regulation 635-40). Army regulations in effect at the time required the referral of any anxiety or mood disorder which showed persistent or recurring symptoms that cause "limitations of duty" or "interference with effective military performance." Army Regulation 40-501, paragraphs 3-32, 3-33. w. Once referred into the DES process, a Soldier can be awarded a medical retirement if it is determined that due to one or more physical disabilities, with a combined rating of 30 percent or more, the Soldier is unable to reasonably perform the duties of their office, grade, rank or rating. However, where a Soldier's inability to perform their requisite duties is due to personality disorder, they are ineligible for DES processing and must be administratively separated without benefits. DoDI 1332.38, E5. l.3 (certain conditions designated by the Secretary of Defense do not constitute a physical disability and should be referred for appropriate administrative action); Army Regulation 40-501, 3-35 (stating that a personality disorder renders an individual administratively unfit rather than unfit because of disability and will be dealt with through an administrative channel like Army Regulation 635-200). x. The DOD mandate to refer all Soldiers with mental disorders constituting a physical disability into the DES could not be clearer. Thus, the ABCMR did not follow statutory regulations by denying the applicant’s DES processing for his PTSD. The erroneous nature of the Board's failure is highlighted by the fact that the Board's own advisor indicated referral was required because "there is no evidence to support the personality disorder diagnosed" and it "is more likely than not that his...symptoms were precursors to development of PTSD." y. Had the applicant been referred into the DES, he would have been found by the Medical Evaluation Board (MEB) to fail medical retention standards and referred to the Physical Evaluation Board (PEB). The MEB is required to "recommend referral to a PEB those Soldiers who do not meet medical retention standards." Army Regulation 635-40, para. 4-13. Failure of medical retention standards for PTSD and major depressive disorder (MDD) include persistence or recurrence of symptoms that impose limitations of duty or duty in a protected environment or result in interference with effective military performance. (Army Regulation 40-501, para. 3-32, 3-33). z. The PEB will consider a service member 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. DODI 1332.38, Encl. 3, para. 2.1; Army Regulation 635-40, para. 3-1. Considerations include whether: (1) a medical condition prevents a service member from performing common military tasks; (2) represents a decided medical risk to the member or the welfare of other military members; or (3) imposes unreasonable requirements on the military to maintain or protect the member. aa. Had the applicant been processed through the DES, he would have been found unfit for duty, since the Army already essentially found him unfit, albeit for PTSD symptoms mischaracterized as a personality disorder, by processing him pursuant to Army Regulation 635-200, paragraph 5-13, which allows for a personality disorder to be a cause for separation only when it interferes with a Soldier's ability to perform the duties of his office, grade, rank or rating. The applicant’s PTSD caused him to be "unable to remain in his [Military Occupational Specialty] MOS 11B [Infantryman]." His PTSD symptoms interfered with his ability to function as a combat Soldier, and necessitated his separation from the Army." As shown in exhibit 1, his commanding officer recommended the applicant undergo a psychological evaluation in-service: bb. His commanding officer noted that the applicant gets along very well with others in the unit but showed signs of PTSD after being wounded in Iraq during an enemy ambush. Based on this supporting evidence along with the medical evaluations confirming his PTSD diagnosis discussed, the applicant should have been submitted to a PEB under consideration 1 of the DODI 1332.38, Encl. 3, paragraph 2.1; Army Regulation 635-40, paragraph 3-1 because his PTSD, incurred as a result of his service, is a medical condition preventing him from performing common military tasks. cc. Upon being found unfit, the applicant would have received a disability rating of at least 50 percent, which in turn would have entitled him to a medical retirement. Once a condition is found unfitting, the PEB must assign a disability rating. Title 10 U.S.C., section 1216(a) provides that where a service member is determined to be unfit for duty based on one or more disabilities, the service branch will assign a rating percentage utilizing the standards established by the VA Schedule for Rating Disabilities (VASRD). In the applicant's case, 38 C.F.R., section 4.129 required the PEB, as the rating agency, to award at least a 50 percent rating to the veteran' s unfitting PTSD, because his PTSD developed as a result of his combat experiences. Here, because the applicant's PTSD developed in service as result of his combat service, his PTSD should receive a 50 percent rating. Alternatively, his rating by the VA of 50 percent disabled, effective the day after his discharge, demonstrates that 50 percent is the proper rating of the state of his PTSD at the time of his discharge. dd. The ABCMR's failure to submit the applicant to DES processing and its resulting failure to grant him a medical retirement under the liberal consideration standard should be set aside in light of overwhelming evidence supporting his PTSD, as supported by the ARBA decision: ee. The applicant’s service and medical records demonstrate that the Army's diagnosis of personality disorder was contrary to the overwhelming evidence and that a diagnosis of PTSD and depression was appropriate. Unfortunately. upon his return from his tour of duty in Iraq, he was treated unfairly and eventually discharged under Army Regulation 635-200, paragraph 5-13. This decision was contrary to the evidence available at the time, and in violation of Army and DOD directives. The denial of his prior ABCMR review only compounded the error in his treatment. These errors have deprived him of benefits to which he is rightfully entitled and has been entitled to for over ten years. ff. The ABCMR has the authority and opportunity to correct this injustice and should do so without further delay so he can finally receive the help he needs. Thus, the applicant requests the Board provide him with medical retirement for his PTSD and shoulder injury or, alternatively, provide him with the DES processing he was denied at discharge so that he can be medically retired. He additionally requests that all references to an alleged “personality disorder” be removed from his DD Form 214 (Certificate of Release or Discharge from Active Duty). gg. The applicant did not have a personality disorder. As noted, the Army defines a personality disorder as a "deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier's ability to perform duty." The ABCMR wrongly maintains the applicant has a personality disorder. Pre-service, as an adolescent and young adult, the applicant never demonstrated a pattern of behavior that was inflexible and pervasive across personal and social situations as is specified for a diagnosis of personality disorder. Similarly, his in-service record contained no evidence of longstanding behavioral or misconduct issues prior to, during, or after his deployment to Iraq that would warrant a "personality disorder" diagnosis. In fact, the applicant's commander expressly found otherwise, finding that "[The applicant] gets along very well with others in the unit." hh. The applicant's post-discharge record also supports a diagnosis of PTSD, not a personality disorder. On 27 April 2006, he received a Compensation and Pension (C&P) examination from the VA that was extensively documented by VA Psychiatrist C____ H____, M.D. In her examination, Dr. H____ found "[t]he veteran had a history of fair psychological functioning prior to joining the Army[.]" Dr. H____'s evaluation also confirmed that a diagnosis of personality disorder would have been inappropriate, where she found that the applicant "showed superior functioning during his first several years in the Army[.]" ii. The applicant's near-death experiences in Iraq caused his PTS. He incurred PTSD as a direct result of his service in Iraq. During March 2004,the applicant was deployed with the First Cavalry Division to Iraq. The First Cavalry Division came under surprise attack in Sadr City on 4 April 2004, now known as "Black Sunday." The siege in Sadr City was filled with terror for many Soldiers and their families, with its significance now embedded in history. During this attack, the applicant was wounded in the left shoulder and upper arm when his combat unit was ambushed. He was medically transported and treated Stateside before later returning to combat. The applicant was awarded a Purple Heart, the Army Commendation Medal with Valor Device, and the Combat Infantryman Badge for his honorable service in Iraq. jj. The degree of trauma faced by the applicant and other Soldiers during the siege of Sadr City has been repeatedly confirmed by various sources, including news outlets. In 2007, ABC News' chief correspondent Martha Raddatz recounted Black Sunday through the eyes of the courageous American men and women who lived it, including the applicant, in her book The Long Road Home: A Story of War and Family. kk. In 2017, Ms. Raddatz's book was adapted into a National Geographic miniseries titled, "The Long Road Home." The description of the first episode, "Black Sunday, Part 1," which reached 1,099 million views, notes, " [t]he First Cavalry Division launches a rescue mission when one of their platoons is ambushed by thousands of enemy insurgents in Sadr, a suburb district of Baghdad. As news breaks, the lives of the Soldiers and their families at Fort Hood are thrown into chaos and uncertainty." In the Long Road Home, Patrick Schwarzenegger was cast as the applicant to portray the sergeant's role and experience during the siege of Sadr City. ll. Based on interviews with First Cavalry Division Soldiers in "The Long Road Home," Ms. Raddatz recounted the fear of facing the unpredictable in enemy territory, " [t]his was the hell of urban warfare: The enemy knows the streets and every conceivable place to hide." See Martha Raddatz, The Long Road Home (2004 ). The book also recounted that the "enemy" ambushed the division by "hopping from one adjoining rooftop to the next, getting closer and closer to the platoon, lobbing grenades, squeezing out five or six rounds of rifle fire, and then ducking for cover, only to pop up again a few minutes later." As noted in the story, at one point the "platoon had been under attack for more than thirty minutes and there was no sign of a rescue." mm. The story also noted that, while under attack, "Sergeant [the applicant] - who had been firing from a crouched position near the outer wall of the roof - went down." And that [the applicant] shouted, "Sergeant D., I'm shot. I'm shot!" Further, the book provided an account of these harrowing moments for the applicant, noting that at that moment, "(h]e had been hit in the shoulder - it wasn't life-threatening but was bad enough that he couldn't keep firing." And that another Sergeant, Sergeant D____, told him to "lie flat on the roof." This traumatic moment was captured in the enclosed photograph of the applicant on Black Sunday. nn. In her Appendix, Ms. Raddatz describes the lives of many Soldiers following the aftermath of Black Sunday. Many Soldiers were diagnosed with PTSD after the Sadr City attack. Sergeant R____M____ recounts, "(h)e was later diagnosed with PTSD, and says no amount of therapy could make him stop thinking about that day." The excerpts in the book describe how the Sadr City attack in particular caused PTSD for many Soldiers-as was the case for the applicant. oo. The applicant’s in-service medical records show that he developed significant PTSD symptoms during his Iraq deployment that continued through his discharge Despite the traumatic experiences he faced in Sadr City, the applicant wanted to return to combat and was re-deployed in June 2004 through March 2005, despite his injuries. Unfortunately, he returned to a situation of heavy combat in Sadr City where he soon began experiencing panic attacks and eventually broke down into a state of fearfulness and hypervigilance. This breakdown was one of the first manifestations of the applicant's PTSD. pp. Extensive record evidence establishes the applicant developed PTSD as a result of the siege of Sadr City. While deployed, he sought treatment from the Combat Stress Team, resulting in his being diagnosed with depression and treated with Zoloft and trazodone. The applicant's PTSD symptoms continued upon his return Stateside from Iraq. The applicant’s wife found that he would "wake up…standing by the window watching for intruders." The applicant eventually reported to an Army psychologist at the Darnall Army Medical Center, at Fort Hood, TX, for treatment for nightmares, anxiety, and other PTSD-related symptoms. Army psychologist, Dr. G____ M____, M.D., diagnosed the applicant with PTSD and depression and suggested a fitness evaluation. qq. On 18 May 2005, the applicant underwent a "Million Clinical Multiaxial Inventory - III" exam, which showed he suffered from an "Axis I Disorder," such as PTSD or MDD, and not an "Axis II Personality or Intellectual Disorder," as follows: “ASSESSMENT FOR POSTTRAUMATIC STRESS DISORDER: The veteran may be diagnosed unequivocally with PTSD as a result of Iraq combat exposure. The history he gives shows no psychological problems prior to his being injured in a well-planned and terrifying ambush on 4 April 2004 in Sadr City. The available military medical record clearly indicates the development of PTSD symptoms after that injury, so significant as to interfere with his ability to serve again in combat. symptoms were severe enough to require treatment by the combat Stress unit and psychological evaluation after his deployment to Iraq was concluded~ According to the veteran, the results of that evaluation necessitated his separation from the Army. Symptoms of PTSD have persisted, and unfortunately are not improving over the year since his discharge. He suffers nightmares, flashbacks, intrusive memories, social withdrawal, emotional numbing, avoidance of reminders of Iraq, distrustfulness, irritability, hyper vigilance, insomnia, and an exaggerated startle response. Symptoms do not at present interfere significantly with his ability to function as a full time college student, but they are causing considerable social withdrawal and having some impact on his marriage as well. If the veteran were to attempt to work full time at present, it is more likely than not that his intense irritability, hyper vigilance, and intolerance of much social interaction would significantly compromise his ability to maintain employment. DIAGNOSES: AXIS I: PTSD, moderate, based on Iraq combat exposure.” (Exhibit D) rr. On 23 May 2005, upon the request of his Stateside commander, the applicant underwent a follow-up mental health status examination out of concern that he showed "signs of PTSD." His commander, noted that while "[The applicant] gets along very well with others in the unit," he "never fully recovered mentally and emotionally from being shot." Importantly, his commander believed that that the applicant's PTSD left him "unable to remain in MOS 11B," his military occupational specialty of infantryman. ss. The ensuing mental health evaluation requested by the applicant's commander documented by just a single page-summarily found the applicant to "manifest a personality disorder" for which he was to be administratively discharged. This assessment did not mention any consideration or evaluation of PTSD, even though it was the specific basis of the mental evaluation request by his commander. On 16 August 2005, his commander notified him of the pending separation action and, on 30 September 2005, the applicant separated from service under the impression that he was being discharged due to his PTSD. tt. Thus, despite ample in-service evidence of the applicant's PTSD, Army psychologist Dr. M____’s diagnosis of PTSD, and the Million Clinical Multiaxial Inventory - III. finding of PTSD, the Army improperly administratively separated the applicant for a personality disorder instead of properly submitting him to DES processing for his PTSD. uu. Post-discharge medical records show the symptoms the Army attributed to personality disorder were actually symptoms of PTSD There is also ample post-discharge medical evidence that the applicant suffered from service-related PTSD rather than a personality disorder. Upon separation from service, he filed a compensation claim for PTSD with the VA. As discussed above, in response to the applicant's claim, a C&P examination was conducted on 27 April 2006 by Dr. H____ at the VA Medical Center in Wala Wala, Washington. Dr. H____ concluded the applicant “clearly developed PTSD symptoms after being wounded during an ambush in April 2004. PTSD symptoms interfered with his ability to function as a combat soldier, and necessitated his separation from the Army in September of 2005. Unfortunately, symptoms have persisted…”. vv. On 6 June 2006, the VA issued a Rating Decision, conferring service connection and a 50 percent disability rating to his PTSD, effective 1 October 2005. His rating was based on his in-service medical records from 19 July 1999 through 14 July 2005, post-treatment VA records, and Dr. H____'s 26 April 2006 C&P examination. (Exhibit E) ww. On 8 June 2009, the applicant was evaluated by Dr. R____ P____, who diagnosed noted that his impression that he has PTSD is reasonable, noting the ABCMR's "personality diagnosis" may be untenable given the trajectory of his career. Dr. P____ found, like the other medical evaluations, that the applicant likely has PTSD rather than a personality disorder. (Exhibit F) xx. The ABCMR's failure to correct the applicant’s erroneous separation for personality disorder was improper. The ABCMR's final decision not to change the reason for the applicant's separation should be set aside because it failed to fulfill its obligation under Title 10 U.S.C., section 1552, DODI 1332.41 and Army Regulation 15-185 (Army Board for Correction of Military Records), to correct an identified error or injustice and apply liberal consideration. yy. Moreover, in failing to correct the applicant’s record, the ABCMR also violated the mandate in DODI 1332.38, E4.Al. l.3.7.4 that requires that "[e]very effort…be made to distinguish symptoms and impairment resulting from personality disorder…from impairment based on other psychiatric conditions." (DoDI 1332.38 E4.13. l.1). At the time of the applicant's separation, this "effort" required the use of DSM-IV to distinguish symptoms and impairment resulting from personality disorder and psychiatric conditions like PTSD. Despite this clear requirement, the ABCMR made no effort to use the DSM-IV to distinguish the symptoms and impairment resulting from the applicant’s alleged personality disorder from his likely precursors of PTSD. Given this extensive medical history confirming his PTSD along with his own testimony, the ABCMR should have properly corrected his medical records to reflect a PTSD diagnosis. As a direct result of the ABC MR' s unlawful actions, the applicant continues to be deprived of the disability retirement to which he is entitled. zz. The applicant applied pro se to the ABCMR for Correction of Military Records on three separation occasions (in 2009, 2012, and 2014) seeking to correct his discharge to remove the "personality disorder" mis-diagnosis and obtain DES processing for his PTSD condition. He was denied each time. aaa. The applicant raised his PTSD diagnosis in applications to the ABCMR for years: "I was chaptered with a 5-13 (personality disorder) while suffering from PTSD from service in Iraq. I am now 80 percent disabled with the VA with 70 percent, and that being from PTSD." He cited to at least three bases for correction in his application to the ABCMR as the basis for his PTSD diagnosis, including: (1) "There is absolutely no history of my personality disorder"; (2) "I was a second term [noncommissioned officer] NCO with no negative actions against me"; (3) "I received numerous awards for my service including for valor, a purple heart, two good conduct awards, and several other awards." When discussing when he discovered the injustice done to him, he reflected, "I feel that I should have been discharged with disability benefits. I was betrayed my service." bbb. In September 2018, he appealed again, with the help of counsel from the National Veterans Legal Services Program, as shown below. In a decision dated 8 December 2020, mailed to the applicant on 11 May 2021, the ABCMR noted it had obtained an advisory opinion from the ARBA medical advisor as part of its consideration of the application. That advisory opinion determined that there was "no evidence to support the personality disorder diagnosed" and that the applicant’s case should be referred to DES processing for his PTSD. ccc. Instead of following the advisory opinion, the ABCMR improperly remanded the request to the Office of the Surgeon General of the Army. Upon remand, the Office of the Surgeon General denied the applicant DES processing for his PTSD condition. Thus, after nearly 15 years seeking proper relief, the applicant's request has been denied for a fourth time. The Combat Stress Team and Army psychologist Dr. M____ at Monroe Health Center, VA Psychiatrist Dr. H____ at Walla Walla VAMC, and the ARBA medical advisor have all confirmed the applicant suffered from PTSD in service. Yet, the ABCMR continues to refuse to submit him to DES processing or correct his discharge records, in direct contravention of the applicable regulations. ddd. The ARBA advisory opinion directly refutes the conclusion of the Office of the Surgeon General. The ARBA opinion concluded that the developmental history recorded in the applicant's VA examination "does not indicate any symptoms/behavior consistent with a personality disorder." Specifically, "[i]n accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017 Clarifying Guidance, there is documentation to support a behavioral health condition at the time of his discharge. While he was evaluated and found to meet retention standards, there is no evidence to support the personality disorder diagnosed." Therefore, the applicant's administrative separation due to a "personality disorder" diagnosis was found unwarranted. eee. Not only did the ARBA advisory opinion determine that the personality disorder was unfounded, but it further opined the symptoms wrongly attributed to personality disorder were most likely properly attributable to PTSD. Specifically, the advisory opinion stated, "[i]t is more likely than not that his adjustment disorder symptoms were precursors to development of PTSD." Accordingly, the ARBA recommended that because the applicant "did not receive a period of treatment to determine if referral to the DES was needed due to his discharged [w]ith an abundance of caution, it is recommended that his case be referred to DES for consideration regarding medical retirement for PTSD." fff. Despite the unequivocal findings by the ARBA medical advisor that the applicant did not suffer from a personality disorder at discharge and its recommendation that he be referred to the DES for consideration regarding medical retirement for PTSD, the ABCMR took no action to properly correct the applicant's record. ggg. Instead, the ABCMR failed to give liberal consideration to substantial evidence of the applicant’s PTSD diagnosis and erred by forwarding his case not into the DES system but to the Army Surgeon General to determine if he should have been medically retired for his PTSD. (Exhibit H). In direct contravention to the ARBA's recommendation that the applicant be submitted to DES processing for his PTSD condition, the ABCMR delegated final decision-making authority to the Office of the Surgeon General to determine whether he should be submitted to DES processing for medical retirement. There is no authority in statute or regulations for this referral and it is an abdication of the ABCMR's decision-making responsibility. hhh. The ABCMR can request commanders of military units or staff agencies, like the Office of the Surgeon General, to "[f]urnish advisory opinions on matters within their areas of expertise upon request of the ABCMR, in a timely matter." (Army Regulation 15-185; 32 C.F.R., section581.3(b)(5)(ii)). However, neither the statute nor the Army Regulation allows the board to delegate the final determination of an error or injustice, and ultimately the correction of a military record, to another agency or commander within the service branch. Now that this matter is again before the ABCMR, the applicant requests the ABCMR to consider the applicant's testimony, the three separate medical evaluations confirming his PTSD, the ARBA advisory opinion recognizing his PTSD, and Martha Raddatz's recounting of the traumatic events that occurred during the War in Iraq for many veterans resulting in PTSD. Therefore, the applicant requests the ABCMR to conduct an independent review of the evidence without delegating its decision making authority to the Office of the Surgeon General. iii. On 2 February 2022, the Army sent the applicant a letter stating that the Surgeon General determined that he did not require disability processing for PTSD at the time of separation. The letter included an enclosure from the Office of the Surgeon General, dated 26 January 2022, which indicated that the Office of the Surgeon General, in response to the ABCMR's referral, had sought the medical opinion of psychologist, B____ R____, Psy.D. The Office of the Surgeon General endorsed the opinion of Dr. R____ and concluded "that a medical evaluation board (MEB) was not warranted at the time of [the applicant's] separation." jjj. Dr. R____'s decision found a lack of "substantial evidence to support entry into the disability evaluation system (DES) in regard to psychological fitness." Dr. R____ pointed to the following as evidence that the applicant did not deserve DES processing due to an alleged lack of: "1. a permanent or temporary psychological profile; 2. A behavioral health diagnosis that rendered [the applicant] unfit to perform military duties aside from a personality disorder that rendered him administratively unfit; 3. and medical records that supported entry into the DES at the time of his military separation." kkk. Dr. R____'s medical opinion is flawed because it relies on at least three fundamental errors. (Exhibit H ). First, Dr. R____ relies on the erroneous assumption that the applicant's personality disorder diagnosis "was an accurate assessment of [his] mental status at the time." However, the ABCMR, in its adoption of the advisory opinion, expressly found that the personality disorder diagnosis was without support. Moreover, Dr. R____ took no steps herself to compare the applicant's in-service symptoms with the DSM-IV. lll. Second, Dr. R____'s medical opinion is flawed because it bases its conclusion on the very error identified by the ABCMR. Specifically, Dr. R____ determined no DES processing was warranted due to the applicant not having a physical profile or a PTSD diagnosis in service. However, the very reason that he had no profile or compensable in-service diagnosis was because of the erroneously diagnosed personality disorder. mmm. Third, Dr. R____ 's opinion is flawed because it is based on her erroneous conclusion that there were no behavioral health records from the applicant's military service aside from the medical record that resulted in his personality disorder diagnosis. This is false. In support of his application, the applicant provided the ABCMR with contemporaneous medical records that indicate his PTSD symptoms were incurred in combat. The records provided to the board included : (1) a medical note from September 2004 which indicated treatment for depression and nightmares; (2) a note from 28 April 2005 that indicates the applicant was experiencing PTSD symptoms, including a "history of recurrent nightmares...due to incidents witnessed in Iraq;" and (3) a medical note from 5 August 2005 where the applicant indicated that over the past month he had felt down, depressed, hopeless and without interest or pleasure in doing things. nnn. The Hagel Memo instructs the correction boards to give liberal consideration to "petitions for changes in characterization of service" when the former service member's records "document one or more symptoms" of PTSD. There are three separate medical opinions confirming the applicant’s PTSD and an ARBA advisory opinion supporting the same. Dr. R____'s opinion failed to address that the applicant's VA records, not just his in-service records, were probative in determining whether he should have been referred into the DES. ooo. As indicated by the ARBA advisory opinion, the Hagel Memo, Kurta Memo, and the Doyon opinion, the VA's post-discharge diagnosis is relevant evidence in determining whether a Soldier suffered from PTSD in service. The VA's post-discharge diagnosis and 50 percent disability rating for the applicant is also relevant because, as noted by the advisory opinion, the applicant's erroneous diagnosis of a personality disorder denied him the required period of treatment to determine if referral to the DES was needed. This evaluation and treatment, however, was provided by the applicant's VA providers in Walla Walla and by the VA C&P examiner, both of whom diagnosed him with PTSD. Therefore, Dr. R____'s conclusion that the applicant did not suffer from PTSD in service and the Surgeon General's subsequent reliance on this opinion are untenable. Rather, the only tenable conclusion is that the applicant's symptoms were attributed, as supported by the evidence, to service connected PTSD. ppp. Therefore, the Office of the Surgeon General's reliance on Dr. R____'s unsubstantiated opinion and failure to consider evidence supporting the applicant's PTSD condition was improper because the ABCMR should have made this decision. The Office of the Surgeon General's reliance on Dr. R____'s unsubstantiated determination continues to deprive the applicant of the disability retirement to which he is entitled under the liberal consideration standard given Dr. R____'s opinion fails to cite numerous opinions and his own feedback confirming his PTSD. qqq. The applicant’s exclusive interview with ABC News discusses his 20-year fight to change the Army’s wrongful discharge. On 22 March 2023, ABC news published an article (Exhibit J) after sitting down with the applicant for an interview detailing the impact of his 20-year fight to change the Army's wrongful discharge claim. (See https://abcnews.go. com/Politics/20-years-iraq-war-vet-fightsarmy- change/story ?id=97886508). The applicant described how he felt overlooked after years of honorable service to his country: "It really bothers me that they threw me away that way," he told ABC News. rrr. The applicant recounted the terrors of "Black Sunday" discussed in Martha Raddatz's book "The Long Road Home," as discussed above. On Black Sunday, he believed he and his fellow troops might not get out alive. He was shot twice in the shoulder and evacuated for medical treatment. With his commitment to serving his country, the applicant rejoined the platoon despite being shot in the shoulder. The platoon was ambushed again by enemy forces. The applicant reflected, "I started having panic attacks, pretty heavy ones. And after a couple of weeks of fighting, I ended up having one while we were out. That kind of shut me down, and they pulled me out." sss. He explained he was thereafter sent to a combat stress center in Baghdad where he was supposed to be assessed for PTSD: “I was supposed to be assessed for PTSD there, but unfortunately, the doctor who did those assessments was on leave. And so, I never got assessed. But they basically told me, 'Yeah, you've got PTSD.” After he and his unit finished their deployment, he was again sent to receive a mental evaluation. For a second time, he was told, "The lady who did it told me, 'You've got PTSD. It's fairly severe." ttt. The Army offered him two choices: be assigned another job in the Army or separate from service. After the second invasion, he was "very heavily medicated, wasn't sleeping, [and] was having panic attacks all the time," he said. When he received the discharge paperwork, he was surprised to see no mention of PTSD, rather, it said he had a personality disorder erroneously under a guise as a 'preexisting condition." In fact, not only did the Army not recognize his PTSD, "they were going to take [his] bonus back, [his] re-enlistment bonus." uuu. Due to the Army's improper discharge for a personality disorder, the applicant reflected "I fought several years through to VA to finally get them to recognize that I was dealing with PTSD and not a preexisting condition." This was the third time a medical professional recognized the applicant has PTSD and not a personality disorder. vvv. As a result of the Army's 20-year error, the applicant was detrimentally impacted after his discharge: "I went through multiple, multiple jobs, whether it was physical things -- my neck and shoulder -- that caused me not to be able to continue, or it was mental health with panic attacks while working. I went through 13 or 14 jobs in the first couple of years after I got out." It did not end there. The applicant's financial situation deteriorated which impacted his wife and children. He said, ""we ended up filing for bankruptcy. Lost our vehicles, all kinds of stuff." www. With a path to a successful Army career and an early promotion to staff sergeant having been on the horizon, the applicant felt the sudden discharge also caused a psychological blow. Despite risking his life for his country, he found ''the biggest thing I did in my life has now boiled down to a personality disorder." xxx. A COD report to Congress said that of 22,656 troops who were separated for personality disorder between fiscal year (FY) 2001 and 2007, only 3,372 (15 percent) had deployed in support of the War on Terror. Most of the rest were separated within the first year of service, according to DOD. But a 2008 Government Accountability Office (GAO) study concluded DOD did "not have reasonable assurance that its key personality disorder separation requirements have been followed." The report noted that accurately diagnosing service members who served in Iraq or Afghanistan with a personality disorder could be particularly challenging. "Some of the symptoms of a personality disorder -- irritability, feelings of detachment or estrangement from others, and aggressiveness -- are similar to the symptoms of post-traumatic stress disorder," the report said. yyy. As a result of GAO's findings, military leaders were grilled on the subject of wrongful personality disorder separations during a 2010 House Veterans Affairs Committee hearing. L____ H____ then Acting Director of Officer and Enlisted Personnel Management for DOD, said efforts were under way to contact all veterans who were separated for personality disorders after having deployed. "We are reaching out to them to inform them of what options are available to them if they consider their discharge mischaracterized," Hebert said. The applicant said he received a message from DOD around 2012, but that it wasn't very helpful. "I got one of those letters. That letter had no contact information at all. All it told you was that they were going to relook at it. It didn't tell you how to get it relooked at or what to do or who to call," the applicant said. After several appeals, he said the Army has so far refused to change the designation on his record. "Each time they shot me down, I would go through bad depression," he said. The applicant argued that with much more known since about PTSD, his record deserves to be corrected. zzz. The applicant is correct. With much more known since in the past 20 years about PTSD and the devastating consequences on the veterans impacted, the Doyon decision explains "the more lenient liberal consideration evidentiary standard is appropriate for PTSD-related correction claims because ' [i]t is unreasonable to expect the same level of proof for injustices committed years ago when...PTSD...w[as] far less understood than it is today." Evidence relevant to a PTSD-related petition may include "changes in behavior,...deterioration in work performance; inability of the individual to conform their behavior to the expectations of the military environment; substance abuse; episodes of depression, panic attacks, or anxiety" and more. Additionally, the "veteran's testimony alone" may establish the existence of PTSD, and a service connection determination by the VA is "persuasive evidence" that PTSD existed during military service. aaaa. Therefore, in addition to extensive medical records confirming his PTSD, the applicant's testimony during his interview with ABC also establishes the existence of PTSD under the liberal consideration standard. With much more known about PTSD, there remains no excuse for rightfully changing the applicant's record to reflect a PTSD diagnosis. bbbb. The applicant requests that the ABCMR award him disability retirement, correct his military records to reflect he was medically retired for PTSD, having been deemed to have failed medical retention standards and being unfit for continued service, with a disability rating of over 30 percent for his service-connected PTSD, that was incurred in the line of duty. In the alternative, remand the applicant's case to DES processing specifically for a determination of the fitness of his PTSD at the time of his discharge and provide the applicant with his right to a hearing, as guaranteed by Title 10 U.S.C., section 1214 and, if the MEB or PEB finds he was unfit, medically retire him effective on the date of his discharge, 30 September 2005. 4. The applicant enlisted in the Regular Army on 29 September 1999 and was awarded the MOS 11B. 5. The applicant deployed to Iraq from 30 March 2004 through 29 March 2005, for which he was awarded the Purple Heart, Army Commendation Medal with Valor Device, and Combat Infantryman Badge. 6. A Commander Request for Mental Evaluation, dated 18 May 2005, shows the following: a. The applicant was not pending “chapter discharge” and there was no history of disciplinary action. b. The applicant’s commander states the applicant was wounded while in Iraq during an intense enemy ambush and his platoon was isolated for over 3 hours. The applicant returned to Iraq and he attempted to reintegrate into his platoon and combat operations but showed almost immediate signs of PTSD and was sent to “Combat Stress.” He has never fully recovered mentally or emotionally from the events. He is a competent NCO, but will be unable to remain in MOS 11B. c. His commander further states the applicant gets along very well with others in the unit. His estimate of the applicant’s potential for retention if psychiatrically cleared, was questionable/low if the applicant remained in MOS 11B. d. With regard to rehabilitation attempts, the applicant was moved out of his line platoon and into the headquarters where he assisted in running the company command post (CP). e. His previous mental health contact included visiting and consulting with “Combat Stress” while in Iraq. 7. A DA Form 3822-R (Report of Mental Status Evaluation), dated 23 May 2005, shows the following: a. The applicant underwent a mental status evaluation on the date of the form and was found to have the mental capacity to understand and participate in the proceedings. b. The applicant was diagnosed with the following: • Axis I: adjustment disorder with mixed mood • Axis II: personality disorder, not otherwise specified • Axis III: none reported • Axis IV: occupational problems c. The applicant was evaluated by the Psychology Department at Fort Hood at the request of his command. He manifests a personality disorder, which is incompatible with continued military service. It is recommended that the applicant be administratively separated from the Army under the provisions of Army Regulation 635-200, paragraph 5-13. It is recommended he not be deployed and not carry weapons. Expeditious processing of this separation is recommended to reduce the risk of further instability and possible harm to self or others. The applicant denied current suicidal or homicidal ideation d. It is the professional opinion of Dr. D____ M____, PsyD., Clinical Psychologist, that the applicant’s problem will not respond to command efforts at rehabilitation (such as transfer, disciplinary action, or reclassification). It is unlikely that efforts to rehabilitate or develop this individual not a satisfactory member of the Army will be successful. The applicant represents a deficiency in attitude and motivation for continued military service. Furthermore, he is apt to represent a command liability and may impair the overall unit readiness and functioning. 8. On 16 August 2005, the applicant was notified by his immediate commander of his initiation of action to honorably separate him from the Army under the provisions of Army Regulation 635-200, paragraph 5-13 due to having been diagnosed with adjustment disorder and personality disorder with occupational problems. He represented a command liability and impaired the overall readiness of the unit. The applicant was advised of his right to consult with counsel, submit written statements in his behalf, and a hearing before an administrative board 9. On 16 August 2005, the applicant acknowledged receipt of notification of initiation of separation under the provisions of Army Regulation 635-200, paragraph 5-13. The applicant acknowledged having been advised by consulting counsel of the basis for the contemplated action to separate him for personality disorder, its effects, and the rights available to him. The applicant requested consulting counsel representation. He waived consideration of his case by an administrative board, to include personal appearance, and did not submit statements in his own behalf. 10. In an undated memorandum, the applicant’s battalion commander recommended approval of the applicant’s honorable separation under the provisions of Army Regulation 635-200, paragraph 5-13, due to personality disorder. 11. In an undated memorandum, the approval authority directed the applicant’s honorable separation under the provisions of Army Regulation 635-200, paragraph 5-13, due to personality disorder. 12. The applicant’s DD Form 214 shows he was honorably discharged on 30 September 2005, under the provisions of Army Regulation 635-200, paragraph 5-13, due to a personality disorder (Separation Code JFX, Reentry Code 3). He was credited with 6 years and 2 days of net active service. 13. Counsel provided an undated form titled Information in Support of Claim for Service Connection for PTSD, which shows the following: a. The applicant described the events he experienced during military service he feels contributed to his claim for service-connection for PTSD as follows: (1) On 4 April 2004, they were on patrol in Sadr City, Iraq and was ambushed by a very large enemy group. They were separated and assaulted for over 3 hours before they received aid or relief. He was wounded in action on that day. (2) On 5 or 6 August 2004, they were on patrol and were ambushed again, but this time they were in a Bradley. No one got injured, bhut this was his first time back in combat and he started having bad panic attacks afterward whenever thigs got tense. (3) Around 15 August 2004, after having a rocket propelled grenade near-miss him, he broke down in an emotional state and was transported back to Forward Operating Base (FOB) War Eagle. b. His unit of assignment from 21 April 2001 through 30 September 2005, was 2nd Battalion, 5th Infantry Regiment, 1st Brigade, 1st Cavalry Division. The dates of the above listed events that transpired in Sadr City, Iraq, were 4 April 2004, 5 or 6 August 2004, 7 August 2004, 8 August 2004, and 15 August 2004. 14. A VA C&P Exam, completed by Dr. C____ H____, staff psychiatrist, dated 27 April 2006, has been provided to the Board in full for review, shows in pertinent part the following: a. The applicant’s Axis I diagnosis is PTSD, moderate, based on Iraq combat exposure. b. The applicant showed no psychological problems prior to his being injured in a well planned and terrifying ambush on 4 April 2004 in Sadr City. The available military medical record clearly indicates the development of PTSD symptoms after that injury , so significant as to interfere with his ability to serve again in combat. Symptoms were severe enough to require treatment by the Combat Stress Unit and psychological evaluation after his deployment to Iraq was concluded. According to the veteran, the results of that evaluation necessitated his separation from the Army. Symptoms of PTSD have persisted and unfortunately are not improving over the year since his discharge. He suffers nightmares, flashbacks, intrusive memories, social withdrawal, emotional numbing, avoidance of reminders of Iraq, distrustfulness, irritability, hyper vigilance, insomnia, and an exaggerated startle response. Symptoms do not at present interfere significantly with his ability to function as a full time college student, but they are causing considerable social withdrawal and having some impact on his marriage as well. If the veteran were to attempt to work full time at present, it is more likely than not that his intense irritability, hyper vigilance, and intolerance of much social interaction would significantly compromise his ability to maintain employment. c. The veteran had a history of fair psychosocial functioning prior to joining the Army, showed superior functioning during his first several years in the Army , and then clearly developed PTSD symptoms after being wounded during an ambush in April 2004. PTSD symptoms interfered with his ability to function as a combat Soldier, and necessitated his separation from the Army in September of 2005 . Unfortunately, symptoms have persisted. He has a number of strengths, including a strong commitment to duty, and because of these strengths he has continued to function as a husband, father, and now as a college student despite receiving no treatment for his persistent symptoms. However, given that the symptoms have not improved at all (and indeed the irritability has worsened) over the past year, she thinks it is unlikely that the veteran’s symptoms will remit spontaneously with the passage of time . She strongly encouraged him to pursue treatment, and offered him some suggestions of psychologists and other resources in the Lewiston area as he was disinterested in pursuing treatment through the VA system. 15. A Decision Review Officer Decision, dated 11 December 2006, shows the applicant was granted a combined service-connected disability rating of 60 percent effective 1 October 2005, for the following conditions: • PTSD, 50 percent • residuals, gunshot wound posterior left shoulder, 20 percent • cervical strain, 0 percent • ulnar neuropathy at the left elbow, 0 percent 16. In March 2009, the applicant applied to the ABCMR requesting physical disability separation in lieu of honorable discharge due to personality disorder. In conjunction with his application, the applicant provided multiple documents, including a self-authored statement to the Board, which was also provided by Counsel with this current remanded application to the Board. 17. The applicant’s self-authored statement to the Board shows the following: a. While deployed to Iraq, he was an Infantry team leader/Humvee commander in the rank of sergeant. He recently won the NCO of the Month Board for his battalion and had a spotless record, on a fast track for promotion and a second term Soldier. He loved his job and wanted to do nothing else with his life. He wanted to retire after serving as Sergeant Major of the Army. b. On his unit’s fourth day in their area of operation, on 4 April 2004, the patrol that he and 19 other Soldiers were on in Sadr City was ambushed. Almost immediately one of their NCOs was killed in action. By the end of that day, their patrol was down two vehicles and they were holed up in a house in a defensive posture, outnumbered by about 50 to 1. He was wounded when two bullets struck his left shoulder and arm, about 45 minutes into the fight. After he was injured, he continued to fight for as long as he could and then assisted his troops with encouragement and by reloading magazines while they continued to fight. They were finally assisted out of their position by a tank company, about 3 or 4 hours later. The wounded were transported back to FOB War Eagle on top of tanks, where he was knocked unconscious with a concussion when their tank fired its main gun. The 50 to 60 of them that were badly wounded were then evacuated back to the States through Landstuhl Army Hospital. c. Upon his return to the States, he worked as hard as he could to get healed up and return to his Soldiers in Sadr City, because the battle was still ongoing and lasted 80 something days before they had a ceasefire. The day he was wounded was the topic of a book written by Martha Radatz titled, “The Long Road Home, A Story of War and Family.” On Father’s Day, a few short months after being evacuated home, he and two other NCOs boarded a transport back to Iraq. d. Upon returning to Iraq, they tried to reintegrate back with their units as soon as possible. He was back on the ground patrolling Sadr City within his first 3 days back. Shortly after going back to work, he started having small panic attacks and also shoulder pain and numbness down his left side. He ignored this stuff because he thought it would go away. In the beginning of August, they were ambushed again (almost the exact same group), but this time they were prepared. The fighting started again, 24 hours a day. During this time, he regularly talked with their Chaplain and was having bigger and bigger panic attacks. About 2 weeks later he finally had a breakdown and was pulled out of sector because he was uncontrollably emotional and in fear for his life. Shortly thereafter, he was sent to the combat stress team in the green zone, where he was supposed to have been evaluated for PTSD. He slipped through the cracks and was not evaluated, although he was asked if he wanted to go home to the States, to which he responded he wanted to stay with his unit and do what he could to help. He was returned to his unit where he did 12 hours on and 12 hours off duty in their company CP. He also did all he could to help his fellow soldiers and NCOs with vehicle maintenance. He redeployed home with his unit. e. After arriving home, his company commander sent him to be mentally evaluated. He was told he was suffering from PTSD and given the option of getting out of the Army or accepting a job based on the needs of the Army. He did not want to leave the Infantry, so he was put out of the Army. He was suffering from what the VA called severe, long-term PTSD. However, he was separated under paragraph 5-13. He had no idea what that meant until recently when he saw a reference to veterans with PTSD who were “chaptered” under 5-13 and how that was wrong. Now, after studying up on the subject, he sees that he in no way fit into that category. He was given an honorable discharge with 1/2 separation pay and most of that was taken back because the Army took back his reenlistment bonus. He received $1,700.00 and was moved to Idaho, where his family was. f. He wants to get what he deserves; no more and no less. His family has suffered greatly trying to make ends meet while waiting on the VA and have now gone through bankruptcy, losing most of what they had while he was in the service to our great nation. He feels that he was thrown under the bus to the Army could save money. Is there any other explanation? 18. A VA C&P Exam conducted by Dr. R____ P____, PhD, psychologist, dated 7 April 2009, which has been provided to the Board in full for review, shows in pertinent part the following: a. The applicant’s Axis I diagnoses are as follows: • PTSD, adult onset, moderate to high intensity • alcohol abuse, in full self-stated remission since mid-2008 • panic disorder with agoraphobia, likely associated with the PTSD b. According to the veteran, he has not slept well since being shot in Iraq in early 2004. He suffers a restless sleeping pattern, has difficulty calming himself and his ruminations, and he awakens frequently. His accrued sleep may account to no more than 2-5 hours per night and he suffers nightmares approximately three times per week. He has been depressed over career changes and disappointments with self-recrimination. He had intended to make the military a career and had advanced rapidly until the time when he was injured, and then began suffering panic and anxiety in the combat situation. c. The patient entered the military in 1999 and received a paragraph 5-13 discharge in 2005 for an ostensible personality disorder. In retrospect and a condition of this -man's current appeal, is his impression that PTSD was his problem rather than a personality disorder. Certainly, his presentation of related information would suggest that his self-appraisal is a reasonable one. He had achieved the grade of E-5 without disciplinary difficulty, but was injured in Iraq. d. The veteran's PTSD more likely than riot can be tied to his combat exposures and he· continues to experience prototypical PTSD residuals including sleep disturbance, intrusive thoughts, nightmares, recurrent depression, difficulty with his temper, flashbacks, panic, and discomfort around crowds, noise or other reminders of the combat situation. He has benefited from outpatient mental health treatment, but continues to fail during ephemeral attempts at employment or schooling. The combination of his psychiatric and physical problems well may be incapacitating, especially considering .his history of attempts and failures in various capacities over time since returning from combat in 2005. Until he can be effectively treated psychiatrically and his neck and shoulder problems can be resolved, he well may be unemployable for practical purposes. He is capable handling his own funds. This man's psychological prognosis continues to be guarded. 19. On 1 September 2009, the Board denied the applicant’s request, determining the evidence presented did not demonstrate the existence of a probable error or injustice and that the overall merits of the case were insufficient as a basis for correction of the applicant’s records. The Board stated: a. The applicant contends he was chaptered out under paragraph 5-13 for a personality disorder while he was suffering from PTSD from his service in Iraq. However, there is no evidence which substantiates that he suffered from PTSD prior to his separation. b. The applicant contends that he has no history of any personality disorder. However, in the absence of evidence to the contrary, it is presumed the applicant was examined by competent military medical personnel who made a valid determination that he had a personality disorder at the time of his separation. c. The applicant's contention that the VA granted him service connection for PTSD with a 70 percent disability rating is acknowledged. However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. d. The applicant's administrative discharge proceedings under the provisions of Army Regulation 635-200, paragraph 5-13, were conducted in accordance with law and regulations applicable at that time. The applicant's DD Form 214 properly reflects he was separated with a separation code of "JFX" for personality disorder in accordance with the governing regulation. 20. The applicant subsequently applied to the Board in 2012 and 2014, without Board action being taken as he had provided neither new evidence nor argument for Board review. 21. The applicant again applied to the Board in August 2018, requesting physical disability retirement in lieu of honorable discharge due to personality disorder. In the adjudication of that case, two medical advisory opinions were obtained from ARBA medical advisors, one pertaining to the applicant’s physical conditions and one pertaining to his behavioral health conditions. The ARBA behavioral health advisory opinion shows in pertinent part the following: a. A review of the applicant’s service record indicates his commander requested a command directed behavioral health evaluation due to signs of PTSD and his inability to remain in his MOS. His commander indicted he had been moved out of his line unit while on deployment and put in the command post. He was diagnosed with adjustment disorder and personality disorder. His commander noted that he was a good leader prior to the injury and got along with everyone in the unit. b. A review of VA's Joint Legacy Viewer (JLV) indicates the applicant completed a second C&P exam initially received a service connected disability rating of 30 percent for PTSD. The PTSD rating was increased to 50 percent in December 2006 and increased to 70 percent in October 2010 and now has a total disability rating of 80 percent for all conditions. The developmental history in his Compensation and Pension Examination does not indicate any symptoms/behavior consistent with a personality disorder. c. In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017, Clarifying Guidance there is documentation to support a behavioral health condition at the time of his discharge. While he was evaluated and found to meet retention standards, there is no evidence to support the personality disorder diagnosed. It is more likely than not that his adjustment disorder symptoms were precursors to development of PTSD. He did not receive a period of treatment to determine if referral to the DES was needed due to his discharge. With an abundance of caution, it is recommended that his case be referred to DES for consideration regarding medical retirement for PTSD. 22. On 8 December 2020, the Board determined the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommended that all Department of the Army records of the applicant be corrected by referring his records to the Office of the Surgeon General for review to determine if the disability evaluation he received from the Army accurately depicted his conditions as they existed at the time. a. If a review by the Office of The Surgeon General determines the evidence supports amendment of his disability evaluation records, the individual concerned will be afforded due process through the DES for consideration of any additional diagnoses (or changed diagnoses) identified as having not met retention standards prior to his discharge. b. In the event that a formal 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 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. d. The Board further determined the evidence presented was insufficient to warrant a portion of the requested relief. As a result, the Board recommended denial of so much of the application that pertains to changing the narrative reason for separation. 23. In an ABCMR letter to applicant, dated 11 May 2021, the applicant was advised the ABCMR rendered a decision on his application to correct his military records. Partial relief was granted and a copy of the Record of Proceedings was enclosed for his use. The approved Record of Proceedings was forwarded to the Office of the Surgeon General. He was advised they will take action to correct his records and provide him with official notification as soon as the directed correction has been made. 24. A memorandum from B____ R____, Psy.D, Licensed Clinical Psychologist, Madigan Army Medical Center, dated 5 January 2022, addressed to the ABCMR in response to ABCMR Record of Proceedings AR20180012055 pertaining to the applicant, shows the following: a. In the history it was noted that the applicant enlisted on 29 September 1999 and deployed to Iraq from 30 March 2004 until 29 March 2005. His command requested a behavioral health evaluation due to concerns of possible PTSD. On 23 May 2005, he had a behavioral health evaluation and was diagnosed with adjustment disorder with mixed mood and a personality disorder (it was not specified which one). On 30 September 2005 he was administratively separated via paragraph 5-13 for personality disorder with an honorable discharge. b. In the ABCMR Proceedings dated 1 September 2009 it was noted that the applicant contended that he had no history of a personality disorder prior to the initial diagnosis. "However, in the absence of evidence to the contrary, it is presumed the applicant was examined by competent military medical personnel who made a valid determination that he had a personality disorder at the time of his separation. The applicant's administrative discharge proceedings under the provisions of Army Regulation 635-200, paragraph 5-13 were conducted in accordance with law and regulations applicable at that time." The request to change his discharge status was denied and considered final unless new evidence was submitted. c. In the ABCMR Record of Proceedings dated 8 December 2020, it was noted that "there is documentation to support a behavioral health condition at the time of his discharge. While he was evaluated and found to meet retention standards, there is no evidence to support the personality disorder diagnosed. It is more likely than not that his adjustment disorder symptoms were precursors to the development of PTSD. He did not receive a period of treatment to determine if referral to the DES was needed due to his discharge. With an abundance of caution, it is recommended that his case be referred to DES for consideration regarding medical retirement for PTSD…the Board concluded there was sufficient evidence to warrant referring the applicant's medical records to the IDES system for further evaluation and possible modification to the applicant's narrative reason for separation." d. The applicant was later diagnosed with PTSD by the VA during a C&P examination, however, first record of this diagnosis was on 27 April 2006 and does not indicate that this diagnosis existed during service or that it resulted in significant impairment of occupational functioning. e. Per Commander Request for Mental Evaluation dated 18 May 2005, the applicant was noted to be wounded in an enemy ambush in Iraq and showed "signs of PTSD" when he returned to the unit. His commander noted he was a "competent NCO" but never seemed to fully recover from the event. His potential for retention was endorsed to be "low" if he remained in Infantry. In regard to previous contact with mental health his commander noted that he "visited and consulted w/Combat Stress while in Iraq." Per DA Form 3822, detailing feedback from a psychological evaluation, the applicant's mood was noted to be "unremarkable." He was diagnosed with adjustment disorder with mixed mood and personality disorder, not otherwise specified. "SM manifests a personality disorder, which is incompatible with continued military service. It is recommended that SM be administratively separated from the Army under a Chapter 5-13. It is recommended that this SM not be deployed and not carry weapons. Expeditious processing of this separation is recommended to reduce the risk of further instability and possible harm to self or others. SM denies current suicidal or homicidal ideation. It is the professional opinion of the undersigned evaluator that this SM's problem will not respond to Command efforts at rehabilitation (such as transfer, disciplinary action or reclassification). It is unlikely that efforts to rehabilitate or develop motivation for continued military service. Furthermore, the SM is apt to represent a command liability and may impair the overall unit readiness and functioning." f. Per the Commander Request for Mental Evaluation the applicant might have accessed assistance from Combat Stress services while deployed, but there is no record of this available. There are no behavioral health records available during his time in military service aside from DA Form 3822. The medical record associated with the findings from that assessment were not available. Given that the applicant’s commander requested assessment of PTSD, it is assumed that the provider considered this diagnosis during the assessment, but apparently the applicant did not meet criteria at the time. In the absence of other records from that time period, it is presumed that this was an accurate assessment of the applicant’s mental status at the time. g. In conclusion, it is her (the author, Licensed Clinical Psychologist) clinical opinion that there is not substantial evidence to support entry into the DES in regard to psychological fitness. The applicant appears to have met medical retention standards per Army Regulation 40-501, paragraph 3-33, at the time of his separation from the military as indicated by the lack of 1) a permanent or temporary psychological profile, 2) a behavioral health diagnosis that rendered him unfit to perform military duties aside from a personality disorder that rendered him administratively unfit, and 3) medical records that supported entry into the DES at the time of his military separation. Military and medical records suggest that the applicant did not have a failing diagnosis of PTSD at the time of discharge and therefore did meet medical retention standards in accordance with Army Regulation 40-501, paragraph 3-33 in regard to PTSD. 25. A memorandum from Dr. C____ C____, Physician, Madigan Army Medical Center, dated 18 January 2022, and likewise addressed to the ABCMR in response to ABCMR Record of Proceedings AR20180012055 pertaining to the applicant, addresses the applicant’s physical conditions, and has been provided in full to the Board for review. 26. An Office of the Surgeon General memorandum, dated 26 January 2022, shows this memorandum serves as the Office of the Surgeon General endorsement of the opinions provided by Dr. C____ C____ and B____ R____, Psy.D. of the Joint Base Lewis McChord, MEB section regarding concerns presented by the applicant. Medical evidence based on the review of the applicant’s medical records indicates that an MEB was not warranted at the time of his separation. 27. An ABCMR letter to applicant, dated 2 February 2022, informed the applicant his ABCMR decision was referred to the Office of the Surgeon General to determine if he should have been retired or discharged by reason of physical disability through the DES. After a thorough review of his medical records, it was determined he did not require disability processing at the time of his separation. A copy of the Office of the Surgeon General decision was enclosed for his review. 28. The ABC News Article, titled, “20 Years Later, Iraq War Vet Fights for Army to Change ’Wrongful Discharge,’ Recognize PTSD Claim, dated 22 March 2023, has been provided in full to the Board for review. It shows in pertinent part the applicant developed PTSD after experiencing heavy combat in what is now infamously known as “Black Sunday”, but was separated for a personality disorder instead of PTSD and has been fighting to have the Army recognize his true condition. the applicant asserts since he was discharged for a personality disorder, it took a while to get the VA to recognize it was PTSD and not a preexisting condition and fought for several years through the VA to finally get them to recognize he was dealing with PTSD and not a preexisting condition. He states, now that so much more is known about PTSD, his record deserves to be corrected. 29. 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. 30. 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. 31. 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. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. 2. The Board considered the applicant’s service record, including his combat experience and injuries while deployed to Iraq, the contemporaneous medical evidence, and the ARBA medical advisor’s opinion that it is more likely than not that the adjustment disorder symptoms were precursors to the development of posttraumatic stress disorder (PTSD) and there was no evidence to support the diagnosis of personality disorder. The applicant is service connected by VA for PTSD related to combat exposure effective the day after service separation. The Board found by a preponderance of evidence that the applicant’s PTSD failed retention standards and rendered him unfit for military service in 2005. 3. The Board further found the greater weight of the evidence did not support a finding that the applicant had any other conditions at service separation, to include gunshot wound posterior left shoulder residuals or a left ear condition, that failed retention standards. As noted in the ARBA medical advisor’s opinion, in-service medical records reflect the applicant’s left shoulder function was assessed as excellent and he showed success for the category of physical fitness in an NCO evaluation report that covered the relevant period. There were no residuals from the external ear injury. The Board found the contemporaneous medical records persuasive evidence that the applicant did not have any additional conditions that warranted processing through the Disability Evaluation System (DES). 4. The Board considered the 50 percent VA rating the applicant received for PTSD, effective 1 October 2005, and found it appropriately characterizes the severity of the unfitting condition at service separation. As such, based on a preponderance of evidence, the Board determined the applicant’s record should be corrected to show he was retired for permanent disability with a 50 percent rating for PTSD, effective 30 September 2005, with placement on the Permanent Disability Retired List the following day. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 xx: xx: xx: GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing: a. The applicant had a behavioral health condition in 2005 that failed medical retention standards and the condition prevented him from performing the duties of an infantry Soldier rendering him unfit. b. making a determination of unfitness for PTSD with placement on the permanent disability retired list at the rate of 50 percent retroactive to 30 September 2005 c. providing orders showing the individual was placed on the permanent disability retired list. 9/27/2023 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. 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. 2. 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. 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. Army Regulation 40-501, Chapter 3, in effect at the time, sets forth when conditions should be evaluated by a medical board and referred to a Physical Evaluation Board. Paragraph 3-32 describes affective or mood disorders. These disorders fail retention standards when there is persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization, necessity for limitation of duty, or resulting in interference with effective military performance. Paragraph 3-35 indicates that personality disorders may render an individual administratively unfit rather than unfit because of physical disability. Paragraph 3-36 states that adjustment disorders are transient, situational maladjustments due to acute or special stress and they do not render an individual unfit because of physical disability but may be the basis for administrative separation if recurrent and causing interference with military duty. 6. 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. 7. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the administrative separation of enlisted personnel. Paragraph 5-13 states a service member may be separated for personality disorder not amounting to disability that interferes with assignment to or performance of duty when so diagnosed by a psychiatrist. A personality disorder is a deeply-ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier’s ability to perform duty. Separation because of personality disorder is authorized only if the disorder is so severe that the soldier’s ability to function effectively in the military environment is significantly impaired. Separation processing 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. A Soldier being separated under this section will be awarded a character of service of honorable unless an entry-level separation is required. 8. 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. 9. 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. //NOTHING FOLLOWS//