IN THE CASE OF: BOARD DATE: 6 September 2023 DOCKET NUMBER: AR20230005522 APPLICANT REQUESTS: * reconsideration of his prior requests for physical disability retirement with a disability rating of at least 80 percent * approval of all benefits, allowances, and back-pay associated with retroactive physical disability retirement * payment of his legal fees APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * United States court of Federal Claims, Case Number, Memorandum Opinion and Order, filed on 2 May 2023 * United States Court of Federal Claims, Case Number, Remand, filed 3 December 2019 * United States Court of Federal Claims, Complaint, Case Number, filed November 2018 * U.S. Department of the Army, Administrative Record Index, dated 18 March 2019, containing in excess of 92 documents on numbered pages 000001 – 001770 * U.S. Department of the Army, Administrative Record Index, dated 26 September 2019, containing in excess of 29 documents on numbered pages 001771-002264 * U.S. Department of the Army, Administrative Record Index, dated 4 October 2019, containing in excess of 20 documents on numbered pages 002265-002368 FACTS: 1. This case originally came before the Army Board for Correction of Military Records (ABCMR) on remand and stay of proceedings ordered by the U.S. Court of Federal Claims and issued by the Court on 3 December 2019 in Civil Action Number 18-1784C. In support of this order, the Court states the following: a. The Court held oral arguments on the pending motions on 3 December 2019. For the reasons set out orally on the record of the hearing, except as to one claim, the complaint is dismissed for want of jurisdiction due to the applicant’s conviction by court- martial. b. With respect the applicant’s claim he should have been considered for medical retirement before being convicted by a court-martial, the Court preliminarily finds it has jurisdiction because the ABCMR considered this claim on the merits. In the event the case returns after remand, the Court will allow the defendant, the Army, to reassert its jurisdictional defense to this claim. c. Because the ABCMR relied on a medical opinion that failed to consider medical evidence as required by Title 10, U.S. Code, section 1552 (h)(2)(B), its decision to reject the applicant’s claim for medical retirement is contrary to law. d. Accordingly, a decision on the cross-motions for judgment on the administrative record was deferred on this one claim. The decision of the ABCMR to reject the claim for medical retirement was vacated and the case was remanded to the ABCMR for a period not to exceed 4 months, so the ABCMR may obtain a further medical opinion that considered the medical evidence as required by law and thereafter resolve the applicant’s claim. The parties would file a Joint Status Report within 14 days of the decision of the ABCMR on remand, advising as to what further proceedings may be necessary and proposing a schedule for them. The case was stayed during the pendency of the proceedings on remand and until further order of the Court. e. As evidenced by remand and vacating of proceedings ordered by the U.S. Court of Federal Claims and issued by the Court on 2 May 2019 in Civil Action Number 18-1784C, the Court determined the ABCMR’s decision on 29 April 2020, finding that the plaintiff was not entitled to Disability Evaluation System (DES) processing is arbitrary and capricious and contrary to law. The applicant’s motion for judgment on the administrative record (ECF 100) related to the ABCMR decision is granted. The defendant’s motion for judgment on the administrative record (ECF 103) is denied. The ABCMR decision is vacated. Although the applicant urges the Court to find that he was entitled to disability retirement, a remand to the Army is more appropriate to permit the Army to calculate what, if any, entitlements are due to the plaintiff. The relief requested by the applicant in his motion for judgment on the administrative record (ECF 100) is denied. f. The case is remanded to the ABCMR until 30 August 2023. On remand, the ABCMR shall refer the applicant’s case for DES processing, i.e., evaluation by a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). The ABCMR shall give the applicant’s claim “liberal consideration” regarding his diagnoses of post- traumatic stress disorder (PTSD) and traumatic brain injury (TBI). See Doyon v. United States, 58 F.4th at 1247-48. The ABCMR shall review the administrative record and consider the medical evaluations by Dr. , Dr. , Dr. , Dr. , and Dr. . The ABCMR shall not draw dispositive conclusions from the lack of documentation in the applicant’s records contemporaneous with his alleged injury and shall not rely exclusively on Dr. ’s advisory opinion. The ABCMR shall determine whether the applicant is entitled to disability- retirement benefits under Title 10 U.S.C. section 1201, Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), Army Regulation 40-501 (Standards of Medical Fitness), and any other applicable laws. g. The ABCMR shall complete the remand by 30 August 2023. The parties shall file a joint status report by 6 September 2023, advising the Court as to whether further proceedings are necessary and, if so, proposing a schedule for such proceedings. The case is stayed pending further order of the Court. The provisions of Rule 52.2(b)(1)(D) of the Rules of the Court of Federal Claims are waived. 2. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160000403 on 19 October 2017 and Docket Number AR20180011561 on 29 April 2020. 3. Counsel states: a. The applicant is a U.S. Army veteran who served his country honorably from 2003 to 2008, at the height of the Iraq war. He joined the Army, pledging to fight for his country when he was 18 years old. While in Iraq, he participated in heavy combat and witnessed gruesome violence. In 2004, he fell 30 feet from a guard tower, where a fellow Soldier found him unconscious with his head bleeding profusely. Because of his service, the applicant suffered a TBI, PTSD, and other debilitating injuries. b. After his return home from Iraq, the applicant unsuccessfully sought help from superiors in his chain of command and from military mental health resources. The Army should have recognized his service-connected injuries and granted him a medical retirement. Instead, as a result of misconduct arising from his undiagnosed, untreated TBI and PTSD, the Army court-martialed the applicant and separated him with a bad conduct discharge (BCD). c. Nearly a decade later, the ADRB upgraded the applicant’s discharge to general, under honorable conditions; however, that upgrade did not do enough. The applicant was denied access to retirement pay and associated health benefits. Therefore, in 2015, the applicant applied to the ABCMR to correct his record to show medical retirement vice discharge due to court-martial. As a result, the Deputy Assistant Secretary of the Army (Review Boards) directed the Office of the Surgeon General (OTSG) to determine if the applicant should have been retired or discharged by reason of physical disability through the Integrated Disability Evaluation System (IDES). d. Subsequently, the Army began processing the applicant through the DES. The applicant submitted medical records and other evidence documenting his pre-discharge health conditions. Two Army physicians examined him and both concluded he met the threshold for medical retirement. But rather than completing the DES process, the Army abruptly terminated it. The ABCMR reversed course and simply denied the applicant’s claim, basing its decision on the cursory and incorrect opinion of a single, unqualified Army physician, whom Army personnel themselves referred to as “[Dr.] (Denies Everything).” e. The Army’s rejection of the applicant’s claim for medical retirement status was arbitrary, capricious, unsupported by the evidence, contrary to the Army’s own rules, and in violation of the Due Process Clause of the Fifth Amendment. The applicant respectfully asks the Court to hold the Army’s decision unlawful, grant his medical retirement, and award him the back-pay to which he is entitled. f. The Secretary of each military branch may retire a service member with disability retirement pay upon determining the service member is unfit to perform the duties of the member’s office, grade, rank, or rating because of physical disability incurred while entitled to basic pay. The Department of Defense established the DES to determine if the service member is unfit for further military service due to a medical condition or physical defect, per Department of Defense Instruction (DoDI) 1332.18 and Department of Defense Memorandum (DoDM) 1332.18. The Army guidance pertaining to this system is contained in Army Regulation 635-40 and Army Regulation 40-501. The DES process consists of three main steps, the MEB, the PEB and final disposition by the Secretary. g. The MEB is comprised of two or more physicians. One physician serves as the MEB approving authority, who must have detailed knowledge of regulations pertaining to standards of medical fitness and disability separation processing. When an MEB is considering a psychiatric diagnosis, such as PTSD, the MEB will include a psychiatrist or clinical psychologist with a doctoral degree in psychology, who may also substitute for the second MEB physician member. A member of the MEB also prepares a NARSUM of the Soldier’s history, present status and medical conditions, which is the heart of the MEB. After the Board has made its decision, it will recommend the case file be forwarded to a PEB for a fitness determination when the MEB finds that one or more of a Soldier’s medical conditions individually or collectively do not meet medical retention standards. Upon receiving the MEB’s decision, the Soldier may elect to concur with the MEB decision, request an impartial medial review by a physician independent of the MEB, or submit a written rebuttal of the MEB findings. h. Following the MEB, the second step of the DES process is a PEB. Upon referral from the MEB, all cases are initially adjudicated by an Informal PEB (IPEB). The IPEB determines the Soldier’s fitness for purposes of retention, separation, or retirement for disability based on a documentary review of the Soldier’s case file. A Soldier wo disagrees with the IPEB’s findings may appeal by requesting a Formal PEB or submitting a written rebuttal. The final step in the DES process is a final disposition by the Secretary of the Military department concerned. This disposition constitutes the final decision as to whether or not the Soldier is eligible to be retired or discharged by reason of physical disability. i. Around November 2002, the applicant enlisted in the Army at the age of 18 in the military occupational specialty (MOS) 95B (Military Police (MP)), where he hoped to fulfill his dream of becoming a police officer like his father while protecting his country and continuing a family tradition of military service. He completed basic combat training (BCT) at Fort Leonard Wood, MO and was initially stationed at Fort Hood, TX. He excelled during training, becoming a squad leader and representing his unit as the guidon carrier and carrying the phase banner at graduation. j. In September 2003, he deployed to Tikrit, Iraq where he had two main duties on Forward Operating Base (FOB) Ironhorse, to provide security on patrols as a turret gunner on an unarmored Humvee and to serve as a prison guard at a containment facility. In Tikrit, he manned the guard towers and watched over enemy prisoners of war at the containment facility, where he was a frequent target of mortar, small arms fire, and rocket attacks. k. As a turret gunner, the applicant’s unit traveled outside the FOB Ironhorse gate almost every day. The enemy frequently targeted the applicant and his unit, which engaged in several firefights with insurgent groups. Their vehicles often encountered improvised explosive devices (IEDs), which severely injured his fellow Soldiers and Iraqi civilians. l. On or about 23 January 2004, the applicant witnessed a disturbing death. He was guarding a convoy when a man stepped out in front of the convoy’s trucks, was hit by a truck, and flew through the air. The convoy stopped and the applicant saw the man lying in a puddle of water with a confused look on his face. The man’s head then suddenly started gushing blood, which the wind picked up and sprayed everywhere. The person in charge of the convoy feared the man had killed himself so the convoy would stop and expose itself to attack. He therefore ordered the convoy to move out without helping the man. m. On or about 6 February 2004, near the end of his deployment, the applicant fell from a 30-foot guard tower. He lost consciousness and has no memory of what caused his fall. His friend and fellow MP, , found him face down and unconscious in a pool of blood near the base of the tower. , a trained medic, helped rouse the applicant and, at the order of a noncommissioned officer (NCO), helped him to the bathroom. , was surprised by the amount of blood from the applicant’s injuries and took a photograph to document his facial gash and extreme bleeding. Shortly afterward, the applicant began rambling incoherently and took him to the FOB Ironhorse medical aid center. n. At the medical aid center, the applicant received stitches, but no other medical treatment. Sergeant (SGT) stated he saw the applicant both before and after the fall and noticed the new gash on his face. The applicant explained to him he had fallen from the guard tower. The applicant also sent an America Online (AOL) message to his family to let them know about the injury. Apart from the photo taken by , SGT ’s statements, the applicant’s AOL message and numerous photos of the applicant taken before and after the fall, his official military treatment records contain no documentation of his fall or treatment at the aid station. o. Following his head injury, the applicant became markedly more depressed and anxious. He had significant difficulty sleeping, experienced constant nightmares, and woke up throughout the night panicking. As a result of his fall, the applicant also began to experience back pain and severe headaches. Army medics provided him over-the- counter painkillers and he began taking 16 to 20 painkillers daily. p. The applicant’s combat tour ended on or about 5 April 2004. Between April and June 2004, when he returned to Fort Hood, TX, he repeatedly told his chain of command about the symptoms he was experiencing, including increased mental distress due to the traumatic events he witnessed in Iraq. He explained that he felt both physically and mentally unable to continue serving. q. He shared his concerns with his company commander, Captain (CPT) , his platoon sergeant, SGT , and several other NCOs. The applicant’s parents also called SGT and other members of their son’s chain of command several times to plead with the Army to provide their son with the medical attention he needed. His chain of command told him to toughen up and to tell his parents to stop calling. Instead of referring him for evaluation and treatment, his chain of command sent him to speak with a Chaplain. The applicant explained to the Chaplain that he did not feel he was able to continue serving. The Chaplain likewise did not refer him for medical care. r. After his return to Fort Hood, TX, he believed he could not handle life in the Army any longer. On two separate occasions around June 2004, he drove his car off base, each time for only a few hours. The second time, he missed formation and an NCO called him, promising that he would receive help if he returned to base. Instead, when the applicant returned to base, CPT placed him on barracks restriction and threatened he could be executed for being absent without leave (AWOL). s. On 30 June 2004, shortly after his barracks restriction ended, the applicant sought help at the Fort Hood Mental Health clinic during walk-in hours. On the clinic’s intake form, the applicant noted he was experiencing poor and disrupted sleep, excessive anxiety, rapid breathing, rapid heartbeat, decreased appetite, frequent crying, racing thoughts, and difficulty controlling worry. He wrote he was seeking help because he was depressed and could not take military life away from home. He answered the form’s question about what result he desired from his clinic visit by writing he wanted his chain of command to realize he needed to be separated from the Army immediately. Specialist (SPC) , an enlisted mental health specialist, evaluated the applicant and his notes state the applicant was feeling anxious, getting only 5-hours of restless sleep, had decreased appetite, and felt hopeless and trapped about his situation in the military. t. In 2004, his unit disbanded and he joined a new unit that was deploying to Iraq. He immediately told his new chain of command he was not physically or mentally ready to deploy for a second time, reporting severe symptoms including panic attacks. His new chain of command did not refer him for medical evaluation and informed him he would have to deploy again. u. Shortly before his unit’s scheduled deployment in November 2005, the applicant went home to Connecticut on emergency leave for his grandfather’s funeral. When he arrived at the airport to board his return flight to TX, he found himself unable to return to his impending deployment and instead remained at his parents’ home for about 6 months. In May 2006, after he was able to bring himself to return to base, he sought help from the new chain of command at Fort Hood; however like his previous chains of command, they did not refer him for evaluation or treatment. v. Instead, on 9 June 2006, he received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL, wherein his rank was reduced to private first class (PFC). He was also instructed to prepare for deployment. On 11 September 2006, over 3 months after the applicant had returned to base, Major (MAJ) charged him with desertion, despite his previous NJP. w. The applicant’s court-martial took place on 23 October 2006. At that time, he continued to suffer from symptoms of his undiagnosed and untreated PTSD, depression, and TBI. He followed the advice provided to him by the defense counsel and pled guilty to the charge and highlighted marital problems as the main source of his stress. He was sentenced to reduction in rank/grade to private/E-1, forfeiture of $849 pay per month for 4 months, 4 months confinement at Fort Sill, OK, and a BCD. The BCD made him ineligible for Department of Veterans Affairs (VA) and nearly all other post-service care and benefits. x. After his Army separation, he struggled with the symptoms of his undiagnosed PTSD and TBI and the stigmatizing effects of his BCD. He was unable to retain employment because his debilitating symptoms made it difficult for him to perform basic professional tasks. He repeatedly made impulsive financial and personal decisions that were entirely out of character with his pre-service personality. His relationship with his family and his then-wife deteriorated as he increasingly withdrew from the outside world. y. Because the Army repeatedly told him he was healthy, the applicant convinced himself there was no medical cause for his distress. This added to his sense of despair and belief he was weak for being unable to cope with the war. Even if he had sought medical help, it would have been difficult for him to obtain because of the BCD. He did not have access to medical benefits, to include Tricare, that help transition traumatized veterans back into civilian life. z. After continuing to suffer, in 2012, his father convince him to see Dr. , a clinical psychologist in, . Dr. diagnosed the applicant with service-connected PTSD. Dr. also evaluated the intake form and notes from the applicant’s visit to the Fort Hood Mental Health Clinic in June 2004 and concluded that at the time of this visit the applicant was a highly compromised individual who should have been referred for treatment as well as an evaluation for psychiatric medication. aa. In March 2014, Dr. , Assistant Clinical Professor of Psychiatry at Yale University School of Medicine and the director of the Violence and Health Study Group at Yale University, evaluated the applicant and diagnosed him with service-connected PTSD. In August 2015, Dr. , a neurologist with over 25 years of experience, evaluated the applicant and diagnosed him with a TBI. Dr. conclude the applicant suffered a severe concussive injury and at least a moderate TBI when he fell from the guard tower. He explained that the applicant’s motor activity was impaired because his central nervous system was damaged by the fall. His left hemisphere showed subtle signs of damage from his TBI and that his severe, persistent migraine headaches were causally related to the original TBI caused by the fall from the guard tower. bb. After being diagnosed with PTSD the applicant began to come to terms with the extent to which his medical conditions had contributed to his struggles both in the Army and after his discharge. At the encouragement of his father, the applicant sought formal review of his service history and post-discharge benefits. In January 2014, the VA determined the applicant’s service was honorable for the purpose of obtaining VA benefits and relied in part on the symptoms he reported during his visit to the Fort Hood Mental Health Clinic in 2004. The VA determined the applicant’s service-connected disabilities were PTSD, TBI, depression, headaches, back pain, tinnitus, painful scar, and ulcers. cc. In September 2014, the applicant applied to the ADRB and his discharge was upgraded his discharge to general, under honorable conditions. The ADRB concluded the overall length and quality of his service, combat tour in Iraq, and PTSD were mitigating factors for his misconduct. The ADRB further concluded that if he had a diagnosis of PTSD and TBI this would have been mitigating at his court-martial and would have led to a more lenient sentence. dd. On 17 November 2015, the applied to the ABCMR requesting retroactive honorable physical disability retirement, removal of reference to court-martial on his DD Form 214 (Certificate of Release or Discharge from Active Duty), and addition of his service accomplishments to his DD Form 214. ee. On 29 September 2016, the VA increased his combined service-connected disability rating to 100 percent, based on ratings of 70 percent for PTSD, 70 percent for TBI, 50 percent for headaches, 20 percent for gastric ulcers, 20 percent for convergence insufficiency with accommodative disorder and photosensitivity, and 10 percent for disfigurement of forehead scar. ff. On 19 October 2017, the ABCMR granted the applicant partial relief. His DD Form 214 was corrected to reflect his military accomplishments, including awards and education, but his character of service was not upgraded nor was reference to court-martial conviction removed. As to his request for physical disability retirement, the ABCMR concluded that based on the applicant’s post-service medical evidence, he may have met the criteria for referral to the DES at the time of his separation. On 27 November 2017, the Deputy Assistant Secretary of the Army (Review Boards) directed the referral of the applicant’s case to the OTSG to determine if he should have been retired or discharged by reason of physical disability through the IDES. gg. Although he was referred to the IDES, he was processed through the legacy DES because Army regulations provide that the legacy process will be used for Army veterans referred by the ABCMR. Unlike the IDES, the DES uses military instead of VA physicians to evaluate fitness for military duty at the time of separation and does not interact with the VA system. hh. After the applicant’s referral to the DES process, the applicant was assigned a Physical Evaluation Board Officer (PEBLO), Ms. , with the West Point Keller Army Community Hospital. In an email, the PEBLO explained the applicant had been referred to their officer for a MEB as part of the ABCMR decision and she requested the applicant provide a memorandum describing his extensive post-separation medical records. ii. As part of the DES, the applicant was evaluated by two Army medical providers, MAJ , a licensed clinical social worker and activated U.S. Army Reservist at West Point, NY, and Dr. , and MEB physical at West Point, NY. MAJ concluded after evaluation on 20 March 2018, that the applicant was experiencing PTSD, depression, anxiety, and mild (m) TBI symptoms after his deployment from Iraq in 2004 and these symptoms interfered with his sleep, appetite, concentration, focus, energy, and ability to perform his duties. MAJ also noted no family history of mental health issues and the applicant did not exhibit these symptoms prior to Iraq deployment in 2003. On 2 April 2018, Dr. evaluated the applicant and completed his MEB NARSUM, which states the applicant’s PTSD, generalized anxiety disorder, major depressive disorder and TBI did not meet medical retention standards at the time of his separation from the Army and that he was not deployable outside the U.S. jj. The applicant’s DA Form 3947 (MEB Proceedings) was partially completed on 2 April 2018, stating the applicant’s PTSD, generalized anxiety disorder, and mTBI were service-connected and did not meet the retention standards of Army Regulation 40-501 at the time of his separation. Consistent with Army Regulation 635-40, paragraph 4-11 (a)(2), the form was signed by the provider who completed the NARSUM, Dr. and Dr. , a clinical psychologist with a doctoral degree in psychology. The form also lists Colonel (COL) of West Point, NY as the MEB Approval Authority. kk. On 3 April 2018, the PEBLO contacted Dr. , the Senior MEB Physician at Ford Gordon, GA, asking him to sign the applicant’s MEB as the approval authority. The PEBLO contacted Dr. despite the fact the applicant’s MEB was being processed at West Point and his DA Form 3947 properly lists COL as the West Point approval authority. ll. Dr. graduated from University of Medicine and Biosciences, College of Osteopathic Medicine in 1983 and completed a residency in Family Practice at Fort Belvoir, VA, in 1986. Dr. is a family medicine specialist. According to the Georgia Composite State Board of Medical examiners, Dr. reports he does not hold certifications from any mental health or neurological field or sub-specialty. mm. Dr. responded to the PEBLO on 4 April 2018 stating he cannot sign the DA form 3947 as the ABCMR directed the determination of whether DES processing was warranted at the time of separation and clearly it was not warranted. He further stated the applicant cannot come back years later after receiving VA ratings and now demand that he should have been put through the MEB. Dr. did not refer to the NARSUM, the applicant’s post-separation medical records or the order to refer the applicant to the IDES process. nn. In response, and at the PEBLO’s request, the applicant’s Counsel sent a letter explaining that after returning from Iraq, the applicant repeatedly sought help from his superiors and the Fort Hood Mental Health Clinic, but that the Army failed to properly diagnose or treat his injuries while he was in service. The PEBLO forwarded this letter to Dr. on 12 April 2018, along with the applicant’s pre and post discharge medical records, the ABCMR decision and the order to refer him to the IDES. The PEBLO also stated she attached an email form , DES Consultant at the OTSG directing them to do the MEB. After receipt, Dr. replied that was amazing and added he was still not convinced they were being forced to do DES processing on the applicant, to which the PEBLO responded she understood the directive to require the conducting of an MEB. oo. On 20 April 2018, Chief of Patient Administration Branch for Keller Army Community Hospital wrote to Dr. and the PEBLO stating if there was still an issue with signing the MEB to let her know and they would have COL do the review. Dr. responded there is clearly no basis for the applicant requiring an MEB prior to his separation. The applicant’s MEB Counsel referred to Dr. as Dr. (Denies Everything).” pp. On 7 May 2018, the PEBLO told the applicant she had spoken with the OTSG and that Dr. would not be permitted to not sign the MEB, although he could disagree with the NARSUM, the board was going to proceed like any other board and can’t just be stopped/not signed by the approving authority. On 15 May 2018, Dr. sent a memorandum to Ms. at Keller Army Community Hospital denying the applicant an MEB, even though the MEB had already begun and the NARSUM had been completed. On 21 May 2018, the PEBLO informed the applicant that Dr. had unilaterally denied the applicant access to the MEB and informed him he would not be permitted to appeal this decision through the regular DES channels. qq. The Dr. memorandum fails to reference any of the evidence provided by the applicant or produced by the Army during its review of his case, including medical examinations conducted by the Army, VA and independent physicians, the NARSUM, contemporaneous communications documenting his symptoms during his time in service, sworn affidavits by members of his family and colleagues, and determinations that he suffers from service-connected PTSD or TBI. rr. Dr. ’s memorandum also contains numerous significant factual errors. For example it states the applicant contents he should have been found unfit for duty at the time of separation in March 2008 because he currently has a 90 percent disability rating from the VA. This is incorrect, as the applicant has a 100 percent VA disability rating, and it was never argued he is entitled to a disability rating simply because of his VA rating. Dr. also states the applicant was in good health with no physical limitations throughout his time in the Army, but the Army diagnosed him with adjustment disorder in 2004 based on symptoms he reported to the Fort Hood Mental Health Intake physician. Although this erroneous diagnosis failed to identify his PTSD, it demonstrates he was not in good health. ss. Dr. also claims there is no documentation of the applicant’s fall from the guard tower or subsequent head bump, but this is also incorrect. The applicant provided a photograph of him bleeding profusely from his head on the night he fell from the guard tower and provided sworn affidavits from stating he found the applicant unconscious near the guard tower, bleeding profusely and rambling incoherently and SGT saying he was the applicant with a stitched up gash on his forehead. Additionally, his service- connected TBI has no suggested alternative sources for his symptoms other than his fall from the guard tower in Tikrit. tt. Dr. also states the applicant was still Tricare eligible from the time he left the military until August 2010 and because he did not seek treatment for his condition he apparently was not in need of any healthcare during this period, which supports the finding he was not in need of disability processing at the time of separation from the Army. The applicant was not Tricare eligible upon is separation because he received a BCD as a result of court-martial. uu. Dr. states the scar that the applicant allegedly received from his fall was also noted in his 2002 Military Entrance Processing Station (MEPS) induction physical examination. This is incorrect because the scar noted on the MEPS induction physical examination is a different scar than the one incurred after his fall from the guard tower in Iraq. The VA recognized the difference when it rated the applicant’s painful scar as service-connected. vv. On 21 June 2018, the ABCMR denied the applicant’s claim for physical disability retirement. Because he did not receive the DES processing to which he was entitled at the time of his discharge, the June 2018 decision was the first time any competent military board had denied the claim in a final decision. In its denial, the ABCMR relied solely on Dr. ’s memorandum, which did not cite any of the medical records produced subsequent to the applicant’s discharge or any to the contemporaneous records attesting to his symptoms. ww. On 9 August 2018, the applicant submitted a request for reconsideration of his prior denial to the ABCMR. In support of his reconsideration, the applicant submitted extensive medical evidence documenting his pre-discharge PTSD and TBI. On 7 September 2018, the ABCMR denied his request for reconsideration. xx. The ABCMR’s decision denying the applicant medical retirement was arbitrary, capricious, unsupported by substantial evidence, contrary to law, and an abuse of discretion. The decision was arbitrary and capricious because it was not based on substantial evidence. In adopting and relying solely upon Dr. ’s memorandum, the Board failed to acknowledge, much less consider, the extensive medical evidence of PTSD, TBI, and other injuries arising from his service. yy. Moreover, the Board incorrectly concluded the applicant did not suffer from any physical or psychological impairment before his discharge, despite contemporaneous documentation of his injuries, his improper diagnosis of adjustment disorder at an Army medical facility, and the conclusion of the Deputy Assistant Secretary of the Army (Review Boards) that his service-connected injuries warranted referring him to the DES. The Board erred by relying upon a highly selective, factually incorrect, and incomplete analysis of the applicant’s records. The ABCMR failed to give due consideration to the applicant’s arguments in his request for medical retirement. By fundamentally mischaracterizing his claim and record of evidence, the Board failed to address his arguments and provide substantial evidence supporting its conclusion that he was not entitled to medical retirement. zz. The ABCMR also failed to articulate and apply the legal standards under which the applicant’s conditions were evaluated. The Board did not refer to a single DoD or Army regulation establishing the standards for medical retention and referral to an MEB. The Army further violated its own procedures in process the applicant’s DES referral. Dr. acted contrary to DoD instructions and Army regulations by unilaterally terminating the DES process. No DoD instruction or Army regulation grants one MEB physician, acting as approving authority, the authority to halt the MEB process without issuing a decision and allowing an opportunity for an independent medical review and/or rebuttal. aaa. Dr. was unqualified to serve and an approving authority as he lacked the required medical training and experience in mental health or neurology. He did not provide substantial evidence supporting his decision to override the opinions of the multiple expert neurological and mental health professionals who previously evaluated the applicant and found him unfit for military duty. His actions and statements demonstrate that he acted in bad faith in adjudicating the applicant’s claim. Upon receiving the case, Dr. pre-judged the outcome and immediately expressed his displeasure. Rather than cooperate in the legally mandated procedure for processing medical retirement claims, he expressed his disbelief that the Army had referred the applicant’s case to him. bbb. The record Dr. encountered was lengthy and complicated and rather than attempt to resolve this complexity, he failed to so much as consider the evidence in the medical records. Dr. dismissed the applicant’s claim by implying that he never fell from a guard tower in Iraq. Dr. did not engage in a judicious weighing of the evidence. Instead, he ignored the evidence entirely and arrived at a conclusion based on a reasoning that did not meaningfully engage with the underlying record. Dr. ’s unwillingness to provide fair, honest, and unbiased evaluations is apparently so well known to Army personnel that at least one official has referred to him as “Dr. (Denies Everything).” ccc. The Due Process Clause of the Firth Amendment to the U.S. Constitution provides that ‘[n]o person shall be deprived of life, liberty, or property, without due process of law.” Military disability retirement status and its corresponding benefits are a statutorily granted property interest within the meaning of the Fifth Amendment. At a minimum, procedural due process requires notice and an opportunity to be heard prior to deprivation of life, liberty, or property. The Due Process protections of the Fifth Amendment also require that an administrative agency conduct adjudications in a fair and orderly manner. The Army violated the applicant’s Due Process rights by prematurely terminating the DES process and prohibiting the applicant from accessing the DES or MEB appeal procedures, based solely on a cursory, factually erroneous, and legally incorrect memorandum by Dr. , who lacks training and expertise in mental health and neurology and acted in bad faith. ddd. The applicant requests the applicant be granted physical disability retirement with a disability rating of at least 80 percent for PTSD and TBI, all associated back-pay and allowances, payment of his legal fees, and any other relief deemed just and proper. 4. A DD Form 2808 (Report of Medical Examination), dated 14 November 2002, shows the applicant underwent a medical examination on the date of the form for the purpose of enlistment. Item 37 (Identifying body marks, scars, tattoos) shows the applicant had several tattoos on his body as well as a scar on his forehead. His prior left knee surgery is also annotated on the form. He was found qualified for service with a physical profile rating of “1” in all categories. 5. The applicant enlisted in the Regular Army on 2 April 2003 at the age of 18 and was awarded the MOS 95B. 6. He deployed in support of Operation Iraqi Freedom with duty in Iraq from 1 October 2003 through 31 March 2004. 7. Counsel provided copies of instant messaging between the applicant and his parents dated between 21 and 26 January 2004, while he was in Iraq. The applicant tells of working VIP missions guarding Members of Congress, being picked up to work personnel security detail, and of his NCO asking him if he wanted to go out for Special Forces. At his mother’s prompting if he’s eating and sleeping ok and happy, he responds they never eat or sleep and he’s not happy. Among other topics of discussion are the arrest of someone he knows back home, the Super Bowl, his high school wrestling team, his father’s gout, looking forward to leaving Iraq in March, and his receipt of various packages from friends and family. 8. A message from the applicant to his parents, dated 7 February 2004 states, “hey i kinda got hurt last night. ill call and tell u the details on the phone, im all good tho ill live peace the rob” 9. Counsel provided a photograph of the applicant with blood on his face and hands. The typed caption under the photograph states: “Photo above is of [the applicant]. The photo was taken during the early morning hours of February 7, 2004 by fellow MP . The photo was taken at a holding facility in Tikrit, Iraq. Shortly after the photo was taken, he was cleaned and his wound was stitched by medical personnel.” 10. There is no documentation in the applicant’s military service or medical records, to include a Line of Duty Investigation, which makes reference to his 30 foot fall from a guard tower or any subsequent medical treatment for his resultant injuries, including stitches or bed rest. 11. A Fort Hood Mental Health Intake Questionnaire, dated 30 June 2004, shows the applicant was self-referred. He stated the reason he came in was because the military was causing him problems back home and he couldn’t take being there or in the military any longer. The results he desired from the clinic that day was to have his chain of command realize he needed to be separated out of the Army as soon as possible. a. The psychological assessment shows the applicant checked on the form the behavior that was a problem for him as being recent AWOL and insubordination. b. The applicant checked on the form the current symptoms that apply to him as being poor disrupted sleep, decreased appetite, excessive anxiety, rapid breathing, rapid heartbeat, crying a lot, racing thoughts, difficult to control the worry, decreased ability to have fun. c. The applicant checked on the form the current feelings that applied to him were sadness, anxiety, rage, hopeless. d. On the form, under “current danger to self or others”, the applicant did not check any of the possible categories, which include suicidal thoughts, suicide plan, history of suicidal behavior, history of assaulting others, homicidal thoughts, plan to kill someone, or access to weapons. 12. A Standard form 600 (Chronological Record of Medical Care), Mental Health Assessment Form shows: a. The applicant was a walk-in to the Department of Psychology on 30 June 2004, for a mental health assessment, stating his chief complaint was problems with the military. He stated his girlfriend got pregnant and since he signed up 1 year ago he hasn’t liked the Army. He experienced loss of friends back home and didn’t have any friends where he was. The separation from his pregnant girlfriend was a problem and he was AWOL two different times to go home and be with his girlfriend. His main problem started two weeks ago. He denied homicidal or suicidal thoughts. He stated he was depressed and couldn’t take military life away from home. He was recently AWOL twice, once for 2 days and the second time for 1 day two weeks ago. b. He stated his signs and symptoms were anxious mood (felt that he needed to be home), low energy, 5 hours of restless sleep per night, no change in libido (good), decreased appetite (eats maybe 1 or 2 meals per day), felt hopeless and trapped about his situation in the military, had excessive worrying, palpitations, shortness of breath related to anxiety, and denied psychiatric history. c. For occupational problems he listed being AWOL twice. He denied other stressors, violence or abuse and family psychological or medical history. For his own past medical history he stated knee surgery (presumably his knee surgery while in high school). He did not reference his fall from the guard tower, headaches, or TBI. For social history he listed one child on the way and that he had a great relationship with his girlfriend and a good working relationship with the people around him. d. The mental status exam showed he was alert and oriented, was cooperative, behavior was within normal limits. His mood was anxious, affect congruent with mood, speech normal, thought process, concentration, insight, reliability, judgement were all deemed good. e. His listed diagnosis was adjustment disorder. His plan did not involve referral, follow-up appointment, admission, or medication. He was informed of the clinic walk-in hours and after duty hours of emergency services. It is also annotated under his plan that he was to go to the legal office and ask about different separation chapters he could possibly receive. He was informed that if he felt the need to come in and see someone that he should call and make an appointment. The form is stamped with the name Specialist (SPC) (Mental Health Specialist). 13. A Department of Psychology, Treatment/Intervention Summary, shows his total amount of sessions was one on 30 June 2004 where he was diagnosed with adjustment disorder. 14. A DA Form 7425 (Readiness and Deployment Checklist), dated 2 November 2005, shows the applicant was deemed a “go” for deployment in all items of the medical category. 15. A DD Form 2795 (Pre-Deployment Health Assessment), signed by a medical doctor on 7 November 2005, shows the applicant was examined for the purpose of assessing his state of health before deployment outside of the U.S. in support of military operations and to assist military healthcare providers in identifying and providing present and future medical care to him. a. The form shows the applicant annotated the following: * he would say his health in general was excellent * he had no medical or dental problems * he was not currently on a physical profile, or light duty, or undergoing a medical board * he had not sought counseling or care for his mental health in the past year * he did not have any questions about his health b. The examining doctor annotated no referral was indicated and the applicant was deemed deployable. 16. Headquarters, 4th Infantry Division (Mechanized) Orders 313-02, dated 9 November 2005 directed the applicant’s unit to proceed on temporary change of station orders from Fort Hood, TX to U.S. Central Command (CENTCOM) deployment in support of Operation Iraqi Freedom effective 28 November 2005 for a period of 365 days. 17. Multiple DA Forms 4187 (Personnel Action) show the following duty status changes pertaining to the applicant: * from present for duty (PDY) to AWOL on 16 November 2005 * from AWOL to dropped from the rolls (DFR) on 17 December 2005 18. A DA Form 458 (Charge Sheet), shows he was charged with desertion on 13 February 2006 in that he quit his unit on 17 December 2005, with the intent of avoiding hazardous duty, namely the preparation for and deployment in support of Operation Iraqi Freedom and remained absent in desertion until, at that time, an unknown date. 19. An additional DA Form 4187 shows his duty status was again changed from DFR to PDY on 5 June 2006, after his surrender to his unit’s Staff Duty desk at Fort Hood, TX. 20. A DD Form 616 (Report of Return of Absentee) shows the applicant surrendered himself to his military unit at Fort Hood, TX on 5 June 2006, therefore apprehension efforts were terminated. 21. A second DD Form 458, dated 11 September 2006, shows he was charged on that date with quitting his unit with the intent of shirking deployment to and service in Iraq and remaining absent in desertion from on or about 16 November 2005 through on or about 5 June 2006. 22. Although Counsel asserts the applicant received NJP under Article 15 of the UCMJ for this period of AWOL and subsequent desertion ending in June 2006 for which charges were preferred against him, there is no evidence of record he accepted NJP for this period of desertion. 23. On 22 September 2006, the applicant offered to plead guilty to the charges against him with referral of his case to a Special Court-Martial empowered to adjudge a BCD. 24. On 17 October 2006, the applicant acknowledged being advised by trial counsel of his post-trial and appellate rights in the event he were convicted of a violation of the UCMJ, to include the right to representation by military counsel, to submit matters in his own behalf. 25. His wife composed an email on 23 October 2006, addressed To Whom It May Concern, which states: a. In response to the charges against her husband, she wanted to defend his actions in hope of a lesser punishment. In 2004 after his first deployment, her husband came home stressed, anxious, and fearful of a second deployment, As his girlfriend at the time, she tried her hardest to be supportive. However, when he gave her the news of his second deployment, as a wife it was something she could not handle. After seeing what he went through the first time he went to Iraq, she was completely against him leaving once again. b. Her persistence that he not go and his commitment to his job caused a great deal of stress on their relationship, to the point where he chose to come home and try to fix the problems between them. Although his intentions were good, they now hurt him in the long run. After meeting with a psychologist on a regular basis to help her deal with these issues, she realized what her husband’s obligations to the Army are hoped he would be able to keep his potion there and fulfill any deployment requirements that may come his way in the future. Her husband only had the best of intentions at heart and made a fine Soldier despite his one mistake. It would be hurtful in the long run for the Army to lose such a well-rounded, hard-working individual. 26. In an undated letter, presumably presented at the time of the applicant’s Special Court-Martial, SSG wrote, in pertinent part he had known the applicant for the past 3-4 months and served as his first line supervisor during that time. Despite being aware that the applicant pled guilty to desertion, it was his opinion the applicant was an outstanding Soldier and had great rehabilitative potential. He did not have any disciplinary problems with the applicant, he was always respectful, and carried out any task given to him with great motivation. He felt the applicant had great potential to continue to serve in the Army. 27. Headquarters, Fort Hood Special Court-Martial Order Number 12, dated 13 April 2007, shows the applicant was arraigned and tried by Special Court Martial on 23 October 2006, where he was charged with, pled guilty to, and found guilty of quitting his unit on or about 16 November 2005, with the intent to shirk important service, namely deployment to and service in Iraq, and did remain so absent in desertion until on or about 5 June 2006. 28. On 23 October 2006, he was sentenced to reduction to the rank/grade of private/E- 1, forfeiture of $849.00 pay per month for 4 months, confinement for 4 months, and discharge from the service with a BCD. 29. Headquarters, U.S. Army Field Artillery Center and Fort Sill Special Court-Martial Order Number 193, dated 20 December 2007 shows the sentence to reduction to the rank/grade of private/E1, forfeiture of $849.00 pay per month for 4 months, confinement for 4 months and a BCD had been finally affirmed. That portion of the sentence extending to confinement having been served, and Article 71(c) having been complied with, the BCD would be executed. 30. The applicant’s DD Form 214 shows he was given a BCD as a result of court- martial on 13 March 2008, after having been placed on excess leave from 7 March 2007 through 13 March 2008, which is creditable for all purposes except pay and allowances. He was credited with 4 years, 1 month, and 14 days of net active service with lost time from 16 November 2005 through 5 June 2006 and 23 October 2006 through 30 January 2007. 31. The applicant’s available service and medical records from this period do not show: * he was issued a permanent physical profile rating * he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 32. A letter from the applicant’s psychologist, Dr. , dated 21 December 2012 states: a. He was writing to offer useful information pertaining to the applicant’s upcoming hearing related to eligibility for benefits based on is discharge status. He stated he is a psychologist in private practice and has a specialty in treating PTSD. The applicant was referred to him to assess his psychosocial condition and to offer an informed perspective on his current clinical status. The hearing in question is to deliberate on the applicant’s eligibility for VA benefits in light of his BCD. b. He met with the applicant for an hour-long session on 3 December 2012, while the applicant was laid off from work and he gave a history of having been in Iraq from 2003-2004 as a machine gunner on a Humvee and as an MP overseeing Iraqi prisoners. As a gunner he felt vulnerable atop the vehicle while driving through populated areas and knew he could be killed at any point. He witnessed death and dismemberment, came under attack by gunfire and mortars, and was in a situation where he had to decide whether to shoot a boy pointing a gun at him. He also sustained a head wound related to duty in a 30-foot guard tower. He does not remember what caused the injury, but he was on duty in the tower and was awoken by on the ground with a gash to his forehead and blood flowing freely. He received stitches, but no further evaluation for sequelae to the head injury, such as concussion or internal brain injury. He reported being disoriented for some time after the fall and having amnesia. c. His BCD came as a result of going AWOL when told at Fort Hood he would have to deploy to Iraq again, which he could not tolerate. His psychological status was not evaluated at the time and he was told desertion could be grounds for being shot. He ultimately was court-martialed, spent 3 months in military jail, and discharged with a BCD. d. The psychologist believes the applicant is suffering from PTSD stemming from his experiences in Iraq with possible contribution or exacerbation by his experiences at Fort Hood. He also believes the applicant may have sustains some degree of closed- head injury when he fell from the guard town, the evidence being the head wound, the loss of consciousness, amnesia, and disorientation. He suggested the applicant begin psychotherapy to deal with his PTSD and that he may benefit from psychopharmacology for depression, sleep onset difficulties, and anxiety, as well as a neurological evaluation to assess any damage sustained in the fall. 33. An undated letter from the VA, the applicant was informed that his claim for VA benefits was received on 28 December 2012 and it was determined his military service from 2 April 2003 through 13 March 2008 was considered honorable by the VA and not a bar to VA benefits. His claim for VA benefits would continue to be processed accordingly. 34. In January 2013, the applicant applied to the ADRB for upgrade of his BCD to honorable, stating his discharge was inequitable because it was based on one isolated, out-of-character incident that would not have occurred had he received support from his chain of command when he informed them he was not physically or psychologically prepared to deploy again. On 15 May 2013, the ADRB informed the applicant his request was denied, having determined he was both properly and equitably discharged. 35. In an updated letter from the psychologist, Dr. , dated 7 January 2014, he states: a. He and the applicant met for 6 psychotherapy sessions between 3 December 2012 and 29 March 2013. He states his review of the Mental Health Intake Questionnaire at Fort Hood, TX, dated 30 June 2004, indicates the applicant was presenting with significant symptoms of depression and anxiety, including anxious mood, decreased energy and appetite, interrupted sleep, lack of motivation, hopelessness, racing thoughts and inability to control his worry. There is also an indication that during a prior evaluation he may have been a threat to himself based on the phrase “contracted for safety.” He is most familiar with this term being used when a patient has suicidal impulses but makes an agreement not to act upon them. b. Overall it sounds as if the applicant was seriously depressed and anxious at the time of the evaluation and there may have been a history of suicidal thinking and should be taken very seriously, as it reflects a highly compromised individual who has shown the potential to be a danger to himself. It was the opinion of Dr. that a person reporting these symptoms should be referred for treatments by a trained mental health professional as well as an evaluation for psychiatric medication to assist with symptom relief. 36. The applicant underwent a VA Compensation and Pension (C&P) Examination on 9 January 2014. The C&P Examination Consult shows: * the applicant was diagnosed with post-traumatic headaches in 2003, for which he was seeking service-connection related to 20-foot fall while stationed in Iraq where he was found unconscious with bleeding head laceration and no memory of the event * he experienced pulsating or throbbing head pain, nausea, vomiting, light and sound sensitivity affecting his ability to work * he was diagnosed with a gastric ulcers for which he was seeking service- connection * he had a painful scar to his forehead, medical to left eyebrow, 2x0.5 cm in length and width for which he was seeking service-connection related to service in Iraq * his scar was deemed at least as likely related to service while stationed in Iraq since the scar is consistent with a head injury 37. A VA Rating Decision, dated 20 February 2014, shows the applicant was awarded a service-connected disability rating of 50 percent for PTSD and 10 percent for tinnitus effective 28 December 2012. Service connection for TBI, face trauma (scar), blurred vision, extreme mood swings, depression, bleeding ulcers, and headaches was denied. 38. A letter from Dr. , Assistant Clinical Professor of Psychiatry, Yale University, dated 17 March 2014, states in pertinent part: a. His letter was written at the request of the applicant’s Counsel for a psychiatric evaluation of the applicant in order to determine whether PTSD had a role in his being AWOL, which led to his BCD from the Army. b. He concluded the applicant suffers from residual symptoms of major depressive disorder and active symptoms of PTSD. His symptoms include depressed mood, diminished interest, difficulty sleeping and poor concentration. He has also had symptoms of intrusive thoughts and memories, nightmares and physiologic arousal as well as avoidance of stimuli, hypervigilance. Testing through a PTSD questionnaire corroborated these findings. c. Although definitive evidence of a TBI can only be obtained through brain imaging such as a computerized tomography (CT) or a magnetic resonance imaging (MRI) scan of his brain, the symptoms of new-onset cluster headaches and ringing in the ears following the alleged wound strongly suggest TBI and are not explainable through PTSD. d. Given that the applicant’s symptoms were worst in 2005 and worse in 2004 than now, and that me met criteria for major depressive disorder and PTSD until 1 year ago, it is highly likely had had both disorders when he presented to the Chaplain and the Fort Hood Mental Health Clinic and he did not receive appropriate treatment at the time of his presentation for the symptoms he endorsed. A referral for a full workup might have revealed he had the said disorders, for which the standard treatment would have been medication and psychotherapy. e. Because one of the symptoms of PTSD is avoidance of stimuli associated with the trauma, it was probably not possible for the applicant to return to Iraq without extreme distress and in this context, his actions of AWOL are entirely consistent with PTSD. In summary, the applicant has a debilitating psychiatric illness that, at the time of the actions leading to his court-martial and BCD, likely did not allow him full control of his own behavior. 39. The applicant again applied to the ADRB in April 2014, requesting an upgrade of his BCD to general, under honorable conditions or honorable, stating his discharge was excessively harsh in light of mitigating factors, to include TBI and PTSD. 40. Among many other documents, in support of his application to the ADRB, the applicant provided numerous affidavits and letters of support from colleagues, friends, and family members, all of which are included for the Board review, some of which are summarized in pertinent part below: a. , wrote an affidavit in March 2014, stating he and the applicant deployed to Iraq from Fort Hood together and became pretty good friends. During their convoy escorts in Iraq they engaged in a number of firefights with different insurgent groups and their vehicles were hit with multiple IEDs. On 6 February 2004 he was on guard duty at the containment facility when he saw the applicant near the base of another containment facilities’ guard towers, lying face down not moving. He ran over to attend to him and saw a large amount of blood. As the applicant was unconscious, he gave him a sternal rub to wake him up and upon waking saw he did not know where he was or what happened to cause his injury. He did not want to move the applicant for fear of a spinal injury, but an NCO ordered him to get the applicant out of the area and cleaned up. He took the applicant to the bathroom and although he seemed in good spirit and was smiling, there was an extreme amount of blood, which he documented through a photograph. Soon after the photo, the applicant became incoherent and he too him to a medical aid station where he left him then reported back to guard duty. After he left him at the medical aid station, the applicant was given stitches or some kind of glue for the large gash on his forehead. He recalls at the time of the incident he thought the applicant had fallen from the guard tower because they were manned 24/7 and there was no one manning the tower above the applicant, although he did not see him fall or witness any other possible causes for his injury that he can recall. He did not follow up with the applicant that night after taking him to the aid station because he had to return to guard duty. b. The applicant’s father wrote an affidavit in April 2014, stating at the start of his son’s deployment, he stayed in regular contact with his parents via instant message, email, or phone call. On 23 January 2004, they received a strange and disturbing email from the applicant stating: “hey whats up??? Hey cool thing happened today we hit a yebbie on a mission with the truck, yeah we were goin down this street and yeb walkes out from around a truck and all of a sudden I see him go flying through the air and a loud noise, I was like dddddddaaaaaammmmm!!!! We stopped an then he was laying in a puddle lookin all confused then his head Just started gushing blood then the wind Picked up and sprayed it everywhere…then he laid in the puddle just turned red…pretty cool stuff huh, alright just telling ya some was sotys ttyl us son THE YOUNGER GREAT ONE.” Within days they talked on the phone about this incident and his son told them the email was sarcastic and that war was hell. Although he was disturbed by this incident, he was still proud and eager to serve his country and was optimistic for the future as captured in emails from 26 January 2004 where he relayed he got picked up for PSD. Then on 7 February 2004, they got an email from him stating “hey I kinds got hurt last night ill call and tell u the details on the phone, im all goo tho ill live peace…”. The following day he called to tell them he was injured while on guard duty at the containment facility. He was working the night shift on a guard tower when a friend found him lying face down and unconscious with his head in a pool of blood, with no memory of what caused his fall or what treatment he received. Several days later he called again to say his only treatment was aspirin and 24 hours rest and that he was back on guard duty the next night. Everything changed after his son’s TBI and there was a marked difference in both the tone of his voice and his attitude toward his duties and the war. He called home less frequently and sounded depressed. Once he returned home his personality was completely different and he began to act strangely with sudden mood swings. Out of concern for their son, they called his platoon sergeant who refused to help. Their son returned home for his grandfather’s funeral on emergency leave, but did not return back to Fort Hood, because he was not mentally or physically ready to return to combat in Iraq. That’s when they knew he needed to seek help for his TBI and PTSD. c. , wrote an affidavit in May 2014, stating he and the applicant met while deployed to Iraq. The applicant was an outstanding Soldier, definitely one of the best in their platoon and he excelled throughout their entire deployment. They worked closely together at the containment facility guard towers. The guard towers were horribly made; the retaining wall that kept you from falling over was only waist high, making it ineffective. Although he was not on duty the night the applicant got injured, he clearly remember he got hurt. The first time he saw the applicant after his injury he had a huge gash on his forehead that was stitched up. When he asked what happened, he explained how found him face down in a pool of his own blood near the base of a guard tower. The gash later formed a large scar on the applicant’s forehead. He’s sure this injury caused this scar because he started joking about his new scar after he was injured that because of this scar the applicant could no longer be a member of the Backstreet Boys, as they had a running joke about him looking like a band member. They had incompetent leaders while deployed who nothing about TBI or PTSD and there was a huge stigma against Soldiers who had mental health problems or sought mental health treatment. d. The applicant wrote a lengthy affidavit in August 2014, recounting many incidents from his Army career. While deployed to Iraq, he had the most trouble telling his parents about the firefights he was involved in, so he would joke so as to not worry them, but the firefights really disturbed him. One of the most disturbing incidents occurred on 23 January 2004, when he was guarding a convoy and a man stepped in front of one of their trucks and he saw him fling through the air. Their convoy stopped and he say him lying in a puddle of water, which then turned to blood. The person in charge of the convoy ordered them to move out without helping the man because he thought it was a sort of trap to expose them to attack. On 7 February 2004, his friend found him unconscious near the bottom of a containment facility guard tower in a pool of blood with a 3 inch gash in his forehead. He has only hazy memories of what happened and does not remember how long he had been unconscious or what treatment he received. All he knew was he had a terrible headache and stitches in his forehead and returned to guard duty the next night. Another disturbing experience was while working as a gunner on a convoy mission he encountered a 10-year old child pointing a gun at him and did not know what to do. The convoy eventually drove away, but he was shaken. These events changed him and he now experienced constant nightmares and panic. He became more depressed back in the U.S. and once he returned from deployment felt he could not go back to Iraq for a second deployment. He expressed his feelings and concerns to his chain of command, stating he was not mentally or physically ready to return to combat it Iraq, but got no help and was told to deal with it. He was eventually referred to a Chaplain, but she just said a prayer for him and sent him on his way. He did not receive any counseling or treatment for his problems, even after twice being missing absent from his unit. He tried to get help by going to the Mental Health Clinic at Fort Hood on 30 June 2004, and listed all of his symptoms on the intake form, but nothing ever came of this effort. His symptoms kept getting worse as he prepared with his unit for his second deployment and he just felt exhausted at that point with no help forthcoming. He was very vocal about his inability to return to Iraq and did not get on the plane to return to Fort Hood after a period of emergency leave when his grandfather died. He was not a deserter, but needed time at home to recover mentally and physically. When he voluntarily returned to Fort Hood, he was told he would redeploy, until he was eventually told he would be brought up on charges of desertion and discharged via court-martial. He was in no condition to defend himself and instead of receiving help he was disciplined. After his release from confinement and the Army, his TBI and PTSD symptoms increased and he eventually became unable to work full-time at his job. He later sought help, at the urging of his father, and was diagnosed with PTSD and possible TBI. He cannot move forward with his life with a BCD. 41. A VA Rating Decision, dated 25 July 2014, shows the applicant was awarded a combined service connected disability rating of 60 percent for the following service- connected disabilities: PTSD rated 50 percent, tinnitus rated 10 percent, and lumbosacral sprain rated 10 percent. Rated as not service-connected were blurred vision, bleeding ulcers, face trauma (scar), TBI, headaches, depression, and extreme mood swings. 42. On 8 September 2014, the ADRB determined that clemency was warranted based on the applicant’s quality of service, combat service, the strong indication of PTSD and TBI and the applicant’s testimony. The Board voted to grant clemency by upgrading the applicant’s characterization of service to general, under honorable conditions. A change in the reason for discharge is not authorized under the Federal Statute. The applicant was reissued a new DD Form 214 on 22 November 2014, which shows his character of service as general, under honorable conditions in lieu of BCD and his prior DD Form 214 was voided. 43. A VA Decision Review Officer Decision, dated 23 December 2014, shows the applicant was granted service connection for TBI, major depressive disorder, recurrent, headaches, PTSD, left eyebrow scar, gastric ulcers and tinnitus with an effective date of 20 November 2012. 44. The applicant subsequently applied to the ABCMR in 2016 requesting removal of all documents related to his court-martial proceedings, correction of his DD Form 214 to show retirement due to physical disability, honorable characterization of service, restoration of rank, all awards authorized, all military education completed, and his period of foreign service in Iraq. The applicant was represented by Counsel and submitted numerous documents of support, all of which have been included for Board review. 45. In the adjudication of his application to the ABCMR, an advisory opinion was received from the ARBA psychiatrist, who reviewed all available documentation. The advisory opinion stated the only documentation available in his military record of having any behavioral health problems was the Mental Health Intake at Fort Hood. There is no documentation of any PTSD symptoms in his records, however the lack of documentation of PTSD symptoms in his military records does not necessarily indicate he did not have PTSD. Based on the symptoms documented in his intake form, it is clear the applicant was suffering from a diagnosis more severe than adjustment disorder and most likely PTSD. Based on the information available at this time, there is sufficient evidence to state the applicant’s PTSD is mitigating for the offense which led to his discharge form the Army, as PTSD id associated with avoidant behaviors such as being AWOL. It appears the applicant’s mental health conditions were not duly considered during his separation processing and it was recommended his record be referred to IDES for consideration of medical disability separation or retirement. 46. The Board considered his application on 19 October 2017 and voted to grant the applicant partial relief. The Board voted to correct his DD Form 214 to credit him with foreign service, military education and add missing awards. The board denied his request to show completion of some military education, some awards, an upgrade of service characterization to honorable, removal of all documents related to his court- martial, to change the authority and reason for his separation, and to process his record through the PDES. 47. A memorandum from the Deputy Assistant Secretary of the Army (Review Boards) to the OTSG, dated 27 November 2017, states: a. She reviewed the Board findings, conclusions, and recommendations from 19 October 2017 and determined there was sufficient evidence to grant additional relief. Therefore, she directed the applicant’s case be referred to the OTSG to determine if he should have been retired or discharged by reason of physical disability through IDES. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his separation by court-martial and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay. Less any entitlements already received. 48. A letter from the ABCMR to the applicant, dated 6 December 2017, advised the applicant his approved Record of Proceedings was forwarded to the OTSG to take action to correct his records and provide him with official notification as soon as the directed correction was made. 49. An Initial Evaluation of Residuals of TBI - Disability Benefits Questionnaire, signed and dated by West Point, MEB Physician Dr. , on 14 March 2018, shows: a. The applicant was diagnosed with mTBI with residual of migraine headache. The applicant complained of mild memory loss, but without objective evidence on testing. An MRI of the brain taken on 17 November 2014 was unremarkable. A CT of the head taken on 3 September 2014 shows small to moderate sized left posterior arachnoid cyst, with no acute intracranial hemorrhage, mass, or mass effect. b. It was determined as likely as not that he suffered mTBI, and his headaches were at least as likely as not caused by his mTBI. His impulsivity, irritability, verbal aggression, attention and memory difficulties were less likely as not related to his mTBI and more likely related to his PTSD. Difficulties with attention that occur with mTBI tend to improve within months. 50. A VA Form 21-0960P-3, dated 29 March 2018, and signed by psychologist, Dr. , Department of Behavioral Health, Kelly Army Community Hospital shows: a. The applicant’s diagnoses are PTSD, generalized anxiety disorder, major depressive disorder, recurrent, moderate, and has symptoms that appear consistent with mTBI. A thorough evaluation is needed to differentiate symptoms of PTSD, anxiety, depression and mTBI. He has occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. b. The applicant was experiencing PTSD, depression, anxiety, and mTBI symptoms after his deployment to Iraq in 2004. These symptoms interfered with his sleep, appetite, concentration, focus, energy, and ability to perform his duties. He did not exhibit these symptoms prior to deploying to Iraq in 2003. He continues to struggle with his symptoms of mood variability, poor sleep and appetite, low motivation and energy, poor concentration and focus, and frequent headaches with ringing in his ears 51. An IDES NARSUM, dated 2 April 2018, completed by West Point MEB Physician, Dr. states: a. The applicant’s diagnoses of PTSD, generalized anxiety disorder, major depressive disorder, recurrent, moderate, and mTBI with residuals of migraine headache and cognitive impairment did not meet medical retention standards. b. The applicant has had adequate evaluation for behavioral health and TBI conditions to reliably determine the course of these conditions and it is unlikely that any further interventions for these conditions would have returned him to duties consistent with his rank and MOS. The onset of his conditions was determined to have been during his deployment to Iraq between October 2003 and March 2004. 52. Counsel has provided numerous copies of email correspondence between the applicant’s assigned PEBLO, Ms. and Dr. , all of which have been provided for the Board’s review. a. Of most significance are the emails from 3-4 April 2018, which show Ms. asked Dr. to review and sign the MEB proceedings for the applicant’s case. Dr. responded stating the ABCMR Record of Proceedings and aligned documents were sent to her IDES office to determine whether PDES processing was warranted at the time of separation and that clearly it was not warranted. b. He further stated there was nothing in AHLTA (the applicant’s electronic medical record), with his last AHLTA record being in 2006 and his separation in 2008. He was not on a physical profile and was not on medications. The applicant cannot come back years later after receiving VA ratings and now demand that he should have been put through an MEB at the time of his discharge. He would not sign this paperwork as no MEB was required at the time of the applicant’s separation. 53. A memorandum from Dr. Senior MEB Physician, Fort Gordon, GA, dated 15 May 2018 states: a. The applicant’s case was referred to the Dwight D. Eisenhower Army medical Center at Fort Gordon, GA to determine if he should have been retired or discharged by reason of physical disability through IDES prior to his separation from active duty. After thorough review of the applicant’s available medical records, he determined the applicant did not require disability processing at the time of his separation from active duty service. b. The applicant and his legal team contend that because he currently has a 90 percent rating by the VA, he must therefore have been unfit for duty at the time of separation in March 2008. After review of the applicant’s medical records, he can without hesitation conclude that he did not have indications of disabling PTSD and he did not have any symptoms of TBI at the time of his separation. The record shows just the opposite. He was in good health with no physical limitations. c. His medical records shows he did indeed seek mental health evaluation as a walk-in on 30 June 2004, after returning from being AWOL for two days, representing the applicant’s second period of AWOL, the first being two weeks earlier for 1 day. His intake was accomplished by a 41D, Mental Health Specialist. The applicant was diagnosed with adjustment disorder. His reported stressors included problems with the military and his girlfriend back home who was pregnant. He reported his main problem stated about 2 weeks prior to his evaluation. d. At the end of the session, among other things, he was counseled that if he felt the need to come in and see someone he could call and make an appointment. It is clear from the record that although he did not officially leave the Army until 31 March 20028, he never sought psychiatric services again. e. In November 2005, the applicant participated in Soldier Readiness Processing (SRP) in preparation for another deployment. During the course of that SRP, his medical record was reviewed and he was counseled face-to-face by a medical profession. He indicated he was in excellent health. He was specifically asked about mental health issues and he indicated he had none and signed the form. After careful review by the medical community, he was determined deployable. f. Rather than deploy again, the applicant again went AWOL and missed his deployment. In November 2006, he was placed in confinement at Fort Sill, OK. As part of the confinement process, new inmates must undergo a complete physical examination and the applicant was cleared for confinement. During all of his confinement period, up until the time he left active duty, he had access to the military health care system. The record shows during that time he was seen and treated for occasional acute minor illness, but never for behavioral health issues. He saw no documentation of the applicant’s request for any type of help from his chain of command, Chaplain, or the medical community. g. The applicant and his legal team report the applicant suffered a 30-foot fall and subsequent head injury and now has residual TBI. There is no documentation of this event in the applicant’s service records and he has no memory of the event. The alleged treatment and follow-up for this injury also seems peculiar. The idea that a fellow MP provided sternal rub and the aid station treated the laceration with stitches and no other follow-up was provided is extremely unlikely. Tikrit, Iraq was a major FOB. By the legal team’s own admission there was a prison as well as a medical treatment facility at Tikrit. Under usual circumstances, the applicant’s fall would have been documented, he would have been seen by a physician and likely held for observation, if not elevated car with advanced emergency capabilities. e. Also of not, in most instances, the symptoms of TBI usually improve with time, not worsen, as it seems to have been the case with the applicant. Furthermore, some 4 years after the fall, the applicant never came to any military clinic complaining of headaches, blurry vision, nausea, etc. Additionally, he was given a clean bill of health to deploy 1 1/2 years after the fall event. Finally, the scar the applicant allegedly received from his fall, the same scar the VA rates him as service-connected at 10 percent, was also noted in his 2002 induction physical examination, which notes a 1-inch scar, anterior forehead. He was also Tricare eligible from his discharge date until August 2010, yet did not return to any military treatment facility or use his Tricare benefit for treatment of his conditions during that period. 54. A DD Form 215 (Correction to DD Form 214) was issued on 19 June 2018, reflecting the 19 October 2017 Board approved corrections to the applicant’s records. 55. A letter from Senator Blumenthal to the Secretary of the Army, dated 26 July 2018, states he was writing to urge the ABCMR’s reconsideration of the denial of the application for medical retirement. He was concerned that the original review process may not have provided the applicant with an opportunity for a fair hearing and thorough consideration of the underlying causes for his less than honorable discharge. He asks the ABCMR to give the applicant an opportunity for a fair hearing – his day in court- to afford him the opportunity to present the facts and reasons why his case should be reconsidered. 56. An ARBA letter, dated 21 June 2018, provided the applicant a copy of the newly issued DD Form 215 and informed him of the request for issuance of medals on his behalf. 57. A letter from the applicant’s Counsel, dated 6 August 2018, requested the applicant’s reinstatement into the DES for purposes of continued MEB processing. Counsel argued the applicant is legally entitled to the entire DES process because the only plausible interpretation of the Deputy Assistant Secretary of the Army (Review Board’s) directive from 27 November 2017, was for the applicant’s case to proceed through an entire process and the OTSG must complete the DES process that it started. Moreover, Dr. violated the applicant’s procedural due process rights to a fair proceeding and Dr. is neither qualified nor authorized to make such a medical determination or halt the DES process. 58. A letter from the Deputy Assistant Secretary of the Army (Review Boards) to the applicant’s Counsel, dated 7 September 2018, states she reviewed Counsel’s letter thoroughly and understood his concerns. The applicant was granted partial relief in his request for medical separation or retirement. She had directed the OTSG to conduct a review of the applicant’s records to determine if DES processing was warranted at the time of his separation. An authorized official representing the OTSG conducted a review of the applicant’s records and determined he did not have any medical conditions which failed to meet retention standards at the time of his separation. Based on this determination, there is currently no reason to proceed with further DES process. If he wishes to submit any additional matters not previously considered by the Board, his case will be reconsidered. 59. On 1 April 2020, the Chief, Medical Operations, Kimbrough Ambulatory Care Center (KACC), Fort Meade, MD, provided an advisory opinion which states: a. All available documents, to include the U.S. Court of Federal Claims Number 18-1784 and the memorandum written by Dr. on 15 May 2008 [this is a typographical error and clearly refers to the 15 May 2018 memorandum discussed above], were reviewed. Per a review of the medical records, there is no documentation to indicate the applicant required disability processing at the time of his separation from the Army. b. Regarding his diagnosis of PTSD, the applicant was evaluated by Behavioral Health on 30 June 2004 after returning from his second period of AWOL. He indicated that the military was “causing problems back home for me.” His desired result from that visit was to have his chain of command “to realize I need to be chaptered out of the Army ASAP.” He was subsequently given a diagnosis of an adjustment disorder and did not return for treatment. There was no further behavioral health documentation after this visit. The reviewer also did not find any medical records to support a 30-foot fall, to support a diagnosis of TBI. c. From a review of the available documents, it is clear there is a dearth of medical records available during the applicant’s time in service. Therefore, there is no evidence to support the need for disability processing prior to his discharge in 2008. On 3 April 2002, the OTSG endorsed the opinion provided by the Chief, Medical Operations, KACC, Fort Meade, MD. After reviewing the applicant’s case, it has been determined there is no evidence to support the need for disability processing prior to his discharge in 2008. 60. On 6 April 2020, a copy of the advisory opinion was sent to the applicant and his representing Counsel and they were given an opportunity to submit comments. Counsel responded on 20 April 2020, stating: a. The OTSG opinion is, at best, a cursory review of the applicant’s voluminous record. It fails to mention, much less consider, the overwhelming evidence in favor of granting his claim for medical retirement benefits. It also does nothing to address the deficiencies of the previous OTSG medical advisory opinion that the Court of Federal Claims identified in its remand order. Therefore, it would be arbitrary, capricious, and contrary to law for the Board to rely on it. The applicant urges the ABCMR to disregard the OTSG opinion entirely and instead weigh the ample evidence in his favor under the required liberal consideration standard. In addition, although the OTSG opinion does not address the Board’s authority to grant the applicant relief, the Board does in fact possess such authority. Based on the evidence and its authority, therefore, the Board should grant the applicant’s request for retroactive medical retirement status. b. Relying on the OTSG opinion would fail to meet the Board’s legal standard of review. The OTSG opinion has obvious shortcomings and is an unacceptable basis for ruling on the applicant’s claim. The ABCMR should not accord it any deference for at least three reasons. First, the opinion fails to canvass the applicant’s full medical record, completely ignoring evidence produced by the Army, the VA, and independent physicians, both before and after his discharge. c. Second, the OTSG opinion is wrong to assert that there is insufficient evidence establishing that the applicant suffered from PTSD and TBI prior to his discharge from the Army. This conclusion ignores his contemporaneous reports of PTSD symptoms to Army medical examiners and his superiors, as well as post-discharge medical evidence confirming his conditions from Army, VA, and civilian physicians. The OTSG’s conclusion on TBI is similarly inadequate because it ignores the multiple third-party affidavits attesting to the applicant’s fall and inappropriate lack of treatment, photographic evidence of his head wound, and the multiple physicians who subsequently confirmed that he suffered a TBI resulting from his fall. d. Third, the OTSG opinion implicitly, and wrongfully, concludes that because Army physicians did not diagnose the applicant with any medically unfitting conditions prior to his discharge, he did not suffer from any such conditions. Although a “presumption of regularity” may typically be appropriate in reviewing military records and decision- making, it does not apply here, given the Army’s manifest failures in documenting and treating PTSD and TBI during the Iraq and Afghanistan wars. Moreover, even if the presumption applied here, the applicant has supplied ample evidence to rebut it. e. The OTSG opinion fails to consider the evidence in the record. To meet the legal standards for review of a disability retirement claim, the Army must consider all of the competent evidence, whether original or supplemental. The OTSG opinion, however, ignores numerous sources of competent evidence that document the applicant’s debilitating conditions during his Army service. Instead, the OTSG memorandum states that the applicant has presented “no evidence to support the need for disability processing prior to his discharger [sic] in 2008.” That is plainly wrong. The memorandum ignores—and contradicts—the overwhelming evidence presented to the ABCMR and the Court of Federal Claims and that court’s recognition that there is evidence supporting the applicant’s claims. Indeed, that is precisely why the Court remanded the case to the ABCMR for further proceedings. f. To reiterate, there is a large body of evidence that the Board must consider. The OTSG opinion did not mention, much less consider, any of the following contemporaneous medical records, post-service military medical records, post- discharge ARBA, VA and civilian physician evidence, detailed below and is therefore wholly inadequate and cannot form the basis of the Boards decision. g. His contemporaneous medical records not considered by OTSG are as follows: (1) In 2004 at Fort Hood, the applicant sought help from his chain of command, reporting that he suffered from significant mental distress because of his traumatic experiences in Iraq. (2) A June 30, 2004 report detailing the applicant seeking help from an Army mental health specialist at Fort Hood and reported distress as well as symptoms including “poor disrupted sleep, decreased appetite, excessive anxiety, rapid breathing, rapid heartbeat, crying a lot, difficult[y] control[ling] worry, decreased ability to have fun, sadness, rage, anxiety, [and] hopeless[ness].” (3) An October 23, 2006 Army physical examination stating that the applicant reported symptoms including fever, chills, visual change, sore throat, chest pain, sputum, abdominal pain, vomiting, dysuria, hematuria, rash, headache, depression and another neurological symptom that is indecipherable in the record. h. His post-service military medical records not considered by OTSG are as follows: (1) On March 14, 2018, MEB physician , conducted an “Initial Evaluation of Residuals of Traumatic Brain Injury (I-TBI) Disability Benefits Questionnaire” and concluded that: “Based on the fact that he had a head trauma with LOC [loss of consciousness] and was exposed to multiple mortar blasts at close range and had AOC [alteration of consciousness] but no structural brain damage, it is at least as likely as not that he suffered mild traumatic brain injury.” (2) On March 29, 2018, MEB Physician , PhD, LCSW, BCDA conducted a “Review PTSD Disability Benefits Questionnaire” and concluded that the applicant “was experiencing PTSD, Depression, Anxiety and mTBI symptoms post his deployment from Iraq in 2004” and that “[t]hese symptoms interred [sic] with his sleep, appetite, concentration, focus, energy, and ability to perform his duties. (3) On April 2, 2018, MEB physician Dr. produced an “IDES Physical Disability Evaluation System West Point NARSUM and concluded that the applicant failed to meet retention standards for “post-traumatic stress disorder, generalized anxiety disorder, major depressive disorder (recurrent, moderate), and m-TBI with residuals of migraine headache and cognitive impairment.” i. His post-discharge ARBA, VA, and civilian physician evidence not considered by OTSG are as follows: (1) A 2014 report by a clinical psychologist who treated the applicant for 6 psychotherapy sessions stated the “Mental Health Intake Questionnaire undertaken at Fort Hood on June 30, 2004 . . . indicates that [the applicant] was presenting with significant symptoms of depression and anxiety . . . [and] may have been a threat to himself[.] He further stated that “it sounds clear that [the applicant] was, at the time of the evaluation, seriously depressed and anxious, and that there may have been a history of suicidal thinking.” (2) A 2014 report by an experienced clinical psychiatrist, who examined the applicant in person and reviewed his entire medical history: This psychiatrist concluded that the applicant suffered from “residual symptoms of Major Depressive Disorder and []active symptoms of Posttraumatic Stress Disorder[,]” as well as “medical symptoms of new-onset cluster headaches and ringing in the ears . . . [that] strongly suggest TBI. . . . Given that the applicant’s symptoms were worst in 2005 and worse in 2004 than now, and that he met criteria for both [major depressive disorder] and PTSD . . . it is highly likely that he had both Disorders when he presented to the chaplain and then the Fort Hood Mental Health Clinic in 2004, and that these illnesses were not addressed. (3) A 2015 report by an expert neurologist who examined the applicant stating the applicant “clearly suffered a severe concussive injury at the same time [as his 2004 fall] and immediately following his head trauma when he first regained consciousness and has suffered with headaches ever since. This neurologist based his TBI diagnosis on both clinical observation of the applicant’s “impaired motor activity . . . [and] clinical evidence of brain dysfunction” as well as “subtle signs of damage on certain neurological findings of his exam.” (4) The ABCMR’s October 19, 2017 decision included a “medical advisory opinion” obtained from the ARBA psychiatrist stating [b]ased on the symptoms documented during his mental health intake, it is clear the applicant was suffering from a diagnosis more severe than adjustment disorder, most likely PTSD. (5) Repeated VA evaluations determined that the applicant suffered from service-connected TBI arising from his fall in Tikrit, Iraq. j. The OTSG ignores abundant evidence demonstrating that the applicant suffered from multiple unfitting conditions prior to his discharge, including PTSD and TBI. The OTSG is wrong to conclude he did not have PTSD in service. k. There is ample evidence establishing that the applicant suffered from PTSD prior to his discharge. The OTSG opinion concludes otherwise only by failing to acknowledge and examine the overwhelming competent evidence proving the applicant’s claim. As outlined above, the applicant reported symptoms indicating PTSD and other serious mental health conditions to his superiors on multiple occasions. But instead of recognizing his symptoms for what they were, a mental health intake specialist, with neither the clinical expertise nor the authority to accurately diagnose medical conditions, incorrectly concluded that the applicant had “adjustment disorder” and failed to refer him for further medical treatment. The applicant reported many of the same symptoms again during his pre-confinement physical examination. Yet again, the Army medical examiner did nothing. As ARBA, Army MEB, VA, and independent physicians have all recognized, the symptoms the applicant reported during his time in the Army were clearly far more serious than the Army’s contemporaneous medical examinations acknowledged. The absence of a contemporaneous diagnosis does not mean he did not have PTSD, or that he was not entitled to medical retirement. The absence of an in- service PTSD diagnosis reflects nothing more than that the Army failed to provide him with appropriate medical treatment. l. The OTSG is wrong to apparently conclude that the applicant did not have TBI in service caused by a fall while serving in Iraq. The OTSG opinion is similarly deficient with regard to the applicant’s TBI. The OTSG’s statement that it could not locate “any medical records to support a 30 foot fall to support the diagnosis of TBI” is, at best, severely misleading. The applicant does not deny that the Army failed to provide him with appropriate treatment after he fell from the guard tower in Tikrit, Iraq. On the contrary, he asserts that it is precisely because the Army failed to provide him with appropriate medical treatment that his TBI went undiagnosed and his condition worsened. The OTSG opinion provides no evidence to support the inference it seemingly draws from the lack of medical records, that the applicant did not fall from a guard tower and did not suffer a TBI. Based on the evidence the applicant has provided, such an inference is untenable. m. To deny that the applicant fell from a guard tower and suffered a TBI, the OTSG must disregard sworn testimony from several sources—including the applicant’s fellow soldier—and provide some other explanation for the TBI he suffered during his service in Tikrit, Iraq. The applicant has consistently maintained that he fell from a guard tower, woke up in a pool of his own blood, and received only cursory medical attention before being sent back to duty in a combat zone. But the OTSG opinion does not need to rely on the applicant’s own account to determine what happened. Rather, numerous competent sources confirm that he fell from a guard tower and suffered a TBI, as the Court of Federal Claims outlined in its remand decision. This includes a sworn affidavit from a fellow soldier who found the applicant unconscious in a pool of his own blood; a sworn affidavit from the applicant’s father explaining that his son told him about his injury the day after his fall and describing his pronounced symptoms; and multiple post- service medical opinions and determinations that the applicant suffered a TBI. n. Further, it is not surprising that during deployment, the applicant did not receive the care to which he was entitled or that recordkeeping was inadequate. That is precisely why this Board exists—to correct the errors and injustices stemming from less- than-perfect processes in the field. Numerous reports have documented in detail the Army’s pervasive failures in identifying, diagnosing, and treating TBIs during the Iraq and Afghanistan wars, even at well-equipped military bases far from active combat zones. Even after Congress recognized this problem and passed a law designed to improve the military’s capacity to diagnose and treat TBIs, the military struggled to develop adequate protocols for identifying wounded soldiers. The applicant has produced compelling evidence that the Army on the whole, and his chain of command in particular, were ill-equipped to deal with soldiers’ brain injuries during an intense, chaotic period of heavy combat. Based on these accounts, the Army’s failure to properly identify, diagnose, and treat the applicant’s TBI is, unfortunately, unsurprising. The record indicates only that the Army failed to provide the applicant with the treatment he needed. That is not a reason to deny him relief now. o. The OTSG cannot rely on a supposed lack of contemporaneous evidence that it believes should exist. As described in detail above, the OTSG’s assertion that “there is a dearth of medical records available during [the applicant’s] time in service” is factually incorrect. It is also legally irrelevant. Any supposed missing contemporaneous medical record does not excuse the ABCMR from its legal obligation to consider all probative evidence, including evidence produced by VA and civilian physicians after the applicant’s discharge. The OTSG clearly has not. p. Moreover, the Army cannot rule against the applicant based on an unsubstantiated belief that there is a “dearth” of contemporaneous medical record evidence, especially when the Army’s repeated failures to adhere to its own regulations caused this supposed evidentiary gap. As the applicant has detailed, the Army unlawfully failed to follow its own procedures on at least four occasions: * the Army failed to evaluate and treat him after he fell from a guard tower in an active combat zone * it failed to provide him with disability evaluation system processing after he reported his symptoms to his superiors * it failed to provide him with a separation physical within one year of his discharge * it terminated his DES process prematurely, without cause, and without the standard rights of appeal provided to soldiers undergoing DES processing. q. Therefore, the ABCMR should not credit the OTSG opinion, which impermissibly relies upon an asserted—but easily disprovable—conclusion that the applicant lacks evidence supporting his claim. Put differently, the OTSG opinion appears to implicitly rely on the “presumption of regularity” to conclude that because Army physicians did not diagnose the applicant with an unfitting condition prior to his discharge, he did not suffer from one. This argument cannot justify denying the applicant’s claim. r. As a preliminary matter, there is ample reason not to apply a presumption of regularity to the military’s handling of active-duty service members’ PTSD and TBI during the Iraq and Afghanistan wars. More importantly, even if the presumption applies here, that presumption can be rebutted. There is indeed clear evidence that establishes that the applicant did in fact have PTSD and TBI at the time of his discharge. Evidence also establishes that Army officers did not properly discharge their official duties in responding to the applicant’s injuries; therefore, even if he were lacking evidence, which he is not, the Army could not draw an inference against him from a circumstance caused by its own repeated failures. The fact that the Army repeatedly mishandled the applicant’s attempts to report and seek treatment for his injuries is more than sufficient to disturb whatever presumption of regularity military officials may typically enjoy. When the Army fails to provide a Soldier with legally mandated medical examinations, it cannot invoke the lack of an official diagnosis to justify denying a soldier’s claim for retroactive medical retirement s. Although the OTSG opinion naturally does not address the ABCMR’s authority to grant the medical retirement status, the applicant is aware that the Board likely intends to consider its authority now. Put simply, the Board does possess the necessary authority. Before the Court of Federal Claims, the United States invoked for the first time a novel (and incorrect) justification for its failure to grant the applicant’s application: that the Secretary lacked valid authority under Title 10, U.S. Code, section1552(f) to amend his court-martial conviction, thus rendering him categorically ineligible for medical retirement status. However, the ABCMR possesses the authority to provide the applicant the medical retirement status he seeks, without disturbing his court-martial conviction and consistent with Title10, U.S. Code, section 1552(f). t. By its plain terms, section 1552(f)(2) expressly preserves, and in no way limits, the Secretary’s authority to act on the sentence of a court martial for the purposes of clemency. What section 1552(f) restricts is the Secretary’s power to exercise non- clemency review of court-martial proceedings. It dispossesses the Secretary of his power to amend, alter, overturn, and erase court martial trials and convictions, while leaving the circumscribed clemency power to act on lawfully adjudged sentences untouched. Congress intentionally preserved the Review Boards’ power to determine whether a sentence should be reduced as a matter of clemency. Because Title 10 U.S. Code, section 1552(f) does nothing to alter the Secretary’s clemency authority—and because it is a punitive discharge that precludes a service member from eligibility for medical retirement status, not a court-martial conviction standing alone—the sole determinative question concerning the ABCMR’s authority to grant the applicant’s medical retirement is whether the Secretary’s clemency authority encompasses the power to relieve the applicant’s punitive discharge. It does. u. In fact, by granting the applicant clemency, the Secretary has already taken action on the applicant’s sentence, which makes him eligible for medical retirement. When the Secretary acted through the ADRB to grant clemency to the applicant, it exercised the clemency powers vested in it under the UCMJ Article 74(b). UCMJ Article 74(b) expressly empowers the Secretary to “substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.” By its plain terms, Article 74(b) permitted the Secretary to relieve the applicant’s Bad Conduct Discharge and replace it with an Administrative Discharge. This is precisely what the ADRB did in granting the applicant’s clemency petition. v. Because the applicant is no longer under sentence of a Bad Conduct Discharge, he is not subject to Army Regulation 635-40, 4-2 (2006), which provides that “[a] Soldier may not be referred for, or continue, disability processing if under sentence of dismissal or punitive discharge.” As the phrase “under sentence of” makes plain, the inquiry turns on an examination of the applicant’s current sentence, which does not include a punitive discharge. The fact that the applicant previously was “under sentence of” a punitive discharge is, for the purposes of determining his present eligibility for medical retirement status, irrelevant. Accordingly, the applicant is currently eligible for disability processing and medical retirement benefits. w. The Board should grant the applicant the medical retirement benefits he seeks. It has been more than 15 years since he enlisted in the United States Army and was first wounded in an active combat zone at the height of the Iraq War. Since then, the applicant has struggled to overcome the debilitating consequences of his injuries and the Army’s failure to treat them. This Board possesses the legal authority to grant the applicant the relief that he seeks, and must give weight to the overwhelming competent evidence supporting his claim rather than rely on the OTSG’s perfunctory and deeply flawed opinion. The Board should take this opportunity to rectify the Army’s longstanding failures and finally deliver justice to a soldier who sacrificed greatly for his nation. 61. The Board fully reviewed and considered the applicant’s contentions, his complaint, the Court’s remand order dated 3 December 2019, and all the evidence of record to include Counsel’s rebuttal to the medical advisory opinion. On 29 April 2020, the Board denied his request, finding the applicant did not demonstrate by a preponderance of the evidence an error or injustice warranting the requested relief, specifically that the record be corrected to reflect a disability retirement with a disability rating of 80 percent with all benefits, allowances, and back pay associated with retroactive disability retirement. The Board found the applicant did not demonstrate by a preponderance of the evidence that any further changes were warranted based on liberal consideration or clemency regarding the applicant’s discharge from the service. 62. In light of the Court’s second remand order, filed on 2 May 2023, a new medical advisory opinion was obtained from the ARBA medical advisors, dated 6 July 2023, which shows the following: a. The applicant developed PTSD while he was deployed in Iraq in 2003. He sustained a TBI as well. When he received orders to complete a second tour in 2005, he went AWOL to avoid the second deployment. As a result, he was court-martialed and received a bad conduct discharge. The applicant contended that his mental health was the cause of his AWOL behavior which resulted in the bad conduct discharge, and he subsequently applied for and received an upgrade to general discharge under honorable conditions through application to the ADRB in 2014. In 2015, the applicant applied to the ABCMR seeking physical disability retirement. The Deputy Assistant Secretary of the Army directed that the case should be referred to the OTSG to determine if the applicant should be (retroactively) retired or discharged by reason of physical disability. Ultimately, the case began processing through the DES; however, the process was halted prior to completion with the decision that he did not meet criteria for referral into the disability system. By court remand, ABCMR has been requested to relook the claimant’s case to determine whether he was entitled to disability-retirement benefits. The ARBA medical advisor was asked to review the applicant’s medical records in relation to this request. The record reviewed included the court documents, the application and supporting documents and the applicant’s available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The review of the medical records included but was not limited to regular provider visits as well as examinations specifically designed to evaluate a medical condition for the purposes of compensation and pension (C&P exams) competed on Disability Benefits Questionnaire (DBQ) forms. b. The applicant entered service 2 April 2003. He deployed in Kuwait/Iraq from 1 October 2003 through 31 March 2004. His MOS was 31B. He was discharged on 13 March 2008 with bad conduct designation by special court-martial completed on 23 October 2006. His charge was being AWOL from 16 November 2005 through 5 January 2006. In addition to the bad conduct discharge, he was adjudged a reduction in rank, a fine, and confinement for 4 months. c. On 20 February 2014, 4 years after discharge from service, the VA service connected the claimant’s PTSD at 50 percent and tinnitus at 10 percent. Recent JLV search showed the following VA ratings: PTSD 70 percent; TBI 70 percent; migraine headaches 50 percent; paralysis, focusing ability of eyes 20 percent; gastric ulcer 20 percent; tinnitus 10 percent; facial scars 10 percent; and lumbosacral strain 10 percent. d. Starting in December 2012, with Dr. , the applicant underwent multiple psychiatric evaluations to include those by Dr. , Dr. , Dr. , and Dr. . The providers were from private, Army and VA organizations. The applicant reported to providers that during his combat deployment, he functioned mostly as a 30-caliber machine gunner on a HMMWV (High Mobility Multipurpose Wheeled Vehicle or HUMVEE) and as an MP overseeing Iraqi prisoners. Among the behavioral health specialists, there was general agreement that the applicant’s mental health symptoms met criteria for PTSD (DSM-IV or DSM-5 depending on the year of the assessment) that originated from his combat deployment in 2003-2004 with similar stressors being cited during each evaluation (witnessing the Iraqi being hit by the truck, the applicant’s head injury, stressors related to his MOS, etc.). The applicant also underwent an initial PTSD compensation and pension evaluation by the VA in January 2014 and completed four subsequent PTSD review evaluations for compensation and pension in November 2014, June 2016, March 2018 (the MEB examination), and in March 2019. Again, there was general agreement affirming the PTSD diagnosis and with examiners acknowledging the TBI condition as well. e. When the applicant’s case was referred into the DES, he underwent an MEB in April 2018 which found that his PTSD condition failed Army medical retention standards of Army Regulation 40-501 chapter 3. In addition, it was determined that comorbid mental health conditions generalized anxiety disorder (GAD) and major depressive disorder (MDD), recurrent, moderate, failed medical retention standards. And finally, the MEB determined that the applicant’s mild TBI (m-TBI) with residuals of migraine headache and cognitive impairment, failed medical retention standards. The MEB as well as previous behavioral health specialists noted that there was symptom overlap when assessing the mental health conditions: For example, the applicant’s depressed mood, anxiety and sleep disturbance could be attributable to his PTSD, MDD or GAD conditions. These three conditions also shared symptoms in common with the applicant’s TBI diagnosis: mood issues, sleep issues, memory and focus concerns. The MEB indicated that the applicant’s mental health conditions caused occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking and/or mood. The MEB also endorsed that the observed level of occupational and social impairment was jointly caused by his PTSD, MDD, GAD and TBI conditions. While there was some suggestion from the applicant’s current disposition, that he may have met criteria for Army disability compensation at the time of discharge; retention and fitness determination are based on documentation of the severity of the medical condition near the time of discharge from service. It was observed that the medical documentation specifically discussed in the 2018 MEB narrative, occurred after the applicant was discharged from service. However, the 17 March 2014 psychiatric evaluation of the claimant by Dr. did include the 30 June 2004 Fort Hood Mental Health Intake Form, Dr. also endorsed that there was symptom overlap between PTSD and TBI, specifically impulsivity, a change in personality, and memory problems. And finally, Dr. endorsed that the claimant’s occupational and social impairment could have been caused by PTSD alone or in combination with the TBI condition. The ARBA Medical Reviewer directly or indirectly reviewed the following in-service evidence related to the PTSD, MDD, GAD, m-TBI, and m-TBI Residual conditions. f. PTSD, MDD, and GAD documentation shows the following: (1) 14 November 2002 Report of Medical Examination for enlistment showed no previous psychiatric history and the psychiatric exam was normal. (2) On 23 January 2004, the applicant emailed his parents a graphic description of his having witnessed an Iraqi being hit by a truck and watched blood pour from his head. Although he was describing a horrible incident, his outlook was upbeat. (3) 26 January 2004, the claimant emailed his parents some details about the missions and some activities showing pride in his work and the mission. His tone remained upbeat, and his attitude was forward thinking and positive. (4) 7 February 2004, he emailed his parents that he was injured the night prior while on guard duty. After the head injury, the parents noted that he communicated less with them, he was emotionally down, and the attitude toward his duties and the war had changed. He stated to his parents that war in Iraq was hell, and he couldn’t wait to get out of the country alive. When he returned from Iraq, he avoided discussing details of his deployment. The claimant’s parents and girlfriend noted a change in personality from being more outgoing to being more emotionally and socially withdrawn. (5) 30 June 2004 Fort Hood Mental Health Clinic: 3 months after returning from Iraq, the applicant reported feeling depressed and that he could not take military life away from home. He reported feeling sadness, rage, anxiety, hopelessness, and loneliness. He reported the following observations which were consistent with signs of impairment in functioning: Excessive anxiety, difficulty controlling worry, racing thoughts, poor and disrupted sleep; rapid breathing, rapid heartbeat, increased respiratory rate, decreased appetite, and frequent crying spells. His reported stressors at the time were separation from his girlfriend and family, and loss of all close friends. He was diagnosed with adjustment disorder. (6) The applicant, an only child, was very close with his parents. However, in September 2004, he impulsively married his high school girlfriend without telling them. (7) 23 October 2006, Darnell Army Community Hospital: the applicant presented for the pre confinement physical. He was mildly ill at the time; however, except for a low-grade temperature, the physical examination was normal. He endorsed having depression. He did not endorse having anxiety. The psychiatric examination revealed normal affect. He was deemed Fit for Confinement. No symptoms were noted during the follow up 13 November 2006 Troop Medical Clinic exam. (8) 17 March 2014, Psychiatric Evaluation by Dr. : the psychiatrist documented that the claimant “scored 101 for current PTSD symptoms and 130 for past symptoms when they were at their worst, around 2005” on the Clinician-Administered PTSD Scale (CAPS-I) questionnaire. Higher numbers suggest more severe symptoms with maximum possible score is 136. (9) 25 November 2014 Review PTSD DBQ: the applicant was not working at the time, he was asked to leave his previous position due to being unable to travel because of his PTSD-related anxieties: It appeared that “his PTSD-related anxieties and panic attacks are the most debilitating and are limiting the Veteran’s daily activities and social functioning due to his fears that he will be triggered”. g. TBI documentation shows the following: (1) 14 November 2002 enlistment examination was negative for history of previous TBI. The enlistment exam was notable for a 1 inch scar on his anterior forehead. (2) In February 2004, a photograph was taken of the claimant while he was bleeding from the head wound. (3) 23 October 2006, pre confinement exam revealed a normal neurologic exam. (4) A 3 September 2014 head CT and 17 November 2014 brain MRI and MRA (magnetic resonance angiography to look at blood vessels in details) were completed specifically due to the applicant’s memory complaints and history of TBI. A left posterior fossa arachnoid cyst was noted that was unchanged from September to November 2014. Primary cysts are present at birth, secondary cysts can develop as a result of trauma. This cyst was not thought to have any clinical significance. It was noted that there were no surrounding structural abnormalities: The ventricular system was normal in size and symmetric. There was no significant periventricular white matter disease and no evidence of cerebral infarction, acute or chronic. The midline structures were intact. There was no evidence of hemosiderin deposition (no evidence of previous bleed). The studies were interpreted by VA radiologists and neurologists as ‘unremarkable’ or within normal limits. (5) 6 years after discharge from service, the applicant underwent the Initial TBI DBQ in December 2014 by VA attending neurologist Dr. . This examiner also completed the applicant’s Review TBI DBQ in June 2016. Dr. endorsed that the applicant sustained a mild TBI with no structural brain damage. (6) The August 2015 evaluation by Dr. was unique in several aspects. Unlike the other behavioral health specialists and neurologists, this provider endorsed that the applicant sustained a moderate traumatic brain injury. They also noted that the applicant’s ‘motor activity was moderately slowed due to apraxia’, he had mildly dysconjugate gaze (from time to time) when focusing on objects, and twice a month he had double vision and dizziness not associated with a headache. Dr. also endorsed that the applicant’s left hemisphere showed subtle signs of damage from trauma. It should be noted that motor abnormalities, specifically apraxia, were NOT documented during any other exam by any other provider. This examination was significant because it resulted in the applicant receiving a separate 70 percent rating for TBI. (7) 11 March 2019 Review PTSD DBQ: the applicant was maintaining employment in a competitive environment—an aerospace test company for the past 4 years. He had no difficulties performing his duties and his reviews “were really good”, except for his attendance. He had an understanding boss who excused the frequent absences due to problems related to PTSD and TBI. (8) It was generally agreed among the applicant’s providers and examiners, that he sustained a TBI, categorized as mild based on traumatically-induced, physiological disruption of brain function manifested in the applicant’s case by the following known elements: there was loss of memory of events less than 24 hours both immediately before and after the accident; and there was alteration of mental state at the time of injury (disoriented, confused). The applicant also had loss of consciousness for an unknown period, but duration was presumed to be less than 30 minutes based on other circumstances/symptomology. The mechanism of injury was unknown. A fall from a 20- 30 foot height was speculative: A fellow Soldier wrote that he found the claimant face down on the ground below the tower where he took guard duty. The applicant was unconscious, and bleeding from a head injury. The Soldier stated he believed that the applicant had possibly fallen from his post at the top of the tower. It should be stated that there is evidence to support the applicant may not have fallen from the top of the tower as the force of the facial contact with the surface, resulted in a facial laceration but not in facial bone fractures. The applicant’s father suggested the head injury could have been the result of direct enemy attack. The applicant has no memory from just prior to the event until he awakened after receiving sutures for the head laceration. The applicant reported performing full duty to include guard duty the next evening. In-service treatment records were void of the TBI event or complaints. h. The applicant’s available service treatment records were sparce; however, there was a record of the applicant having reported mental health symptoms while in service and the applicant’s family provided some relevant contemporaneous evidence that showed the progression of his state of mind and apparent personality change, through his online communications at the time. Contemporaneous records revealed the breadth and severity of the symptoms he reported at the time as well his extreme measure to avoid deployment and related stimuli by going AWOL. The applicant went from a Soldier who was close to his parents sharing details with excitement about his duties and the mission; to a Soldier who was accused of desertion. There was no previous mental health history and no previous misconduct prior to the head injury. There was no history of substance abuse or legal issues. The applicant did not report suicide ideation or suicide attempts and he was never psychiatrically hospitalized. He was never ‘profiled’ for his behavioral health condition while in service. However, the condition did significantly interfere with performance of duties—it prevented him from deploying with his unit. He was changed so much by the development of the PTSD/TBI condition that it impacts his work and relationships to this day and at least in part because his symptoms (decreased motivation, distrust, and suspiciousness) get in the way of his fully engaging in available treatment. Based on review of the applicant’s available records, the ARBA reviewer concurs with the 2018 MEB that the PTSD, MDD, GAD and TBI conditions did NOT meet retention standards. The ARBA medical reviewer opines that contemporaneous documentation suggests by the preponderance of evidence that continued service would have been harmful to the applicant’s health or would prejudice the best interests of the Army; therefore, these conditions failed medical retention standards at the time of discharge from service. i. The applicant’s Cognitive Impairment m-TBI Residual condition was listed on the 2 April 2018 MEB Proceedings (DA Form 3947) as NOT meeting retention standards. The ARBA medical reviewer non concurred with this determination based on the following observations: This condition was endorsed by Dr. , but it was not diagnosed by other neurologists or behavioral health providers/examiners. Of note, during TBI compensation and pension evaluations, the applicant reported problems with short term memory, and trouble remembering phone numbers and street names; however, the neurologist noted that there was no objective evidence of clinically significant impairment on testing. In 2014, Dr. wrote “the impulsivity, irritability, verbal aggression, attention and memory difficulties he described are less likely as not related to his mild TBI and more likely related to his PTSD. Difficulties with attention that occur with mild TBI tend to improve within months”. They recommended neuropsychiatry consultation to assess the applicant’s cognitive complaints (issues with memory, focus, concentration etc.) further with comprehensive testing. This was never completed. However, he did achieve a normal cognitive assessment score via the Folstein mini-mental status exam by Dr. on 17 March 2014. He scored 27/30 (a score of 24 or above is considered normal). The medical basis for the diagnosis Cognitive Impairment m-TBI Residual condition was based on subjective complaints; and in addition, was not clearly established as separate and distinct from the claimant’s mental health conditions (e.g. decreased concentration due to poor sleep or decreased focus due to excessive worrying). And finally, there was insufficient objective evidence to support that the reported cognitive symptoms significantly impact performance now or significantly impacted performance while in service. Therefore, the Cognitive Impairment m-TBI Residual condition did not fail medical retention standards of Army Regulation 40-501 chapter 3. j. The applicant developed at least three conditions as a result of traumatic brain injury. Their symptomology was distinct, and the conditions were recognizable as standalone diagnoses warranting their own individual assessment/treatment by specialists. The applicant’s posttraumatic headaches/migraine condition and eye disorders condition were determined by appropriately credentialed medical professionals to be attributable solely to the TBI event. Tinnitus was attributed to both the head injury and military noise sources (explosives, gun fire, machines etc.). Whereas the TBI condition itself did NOT meet retention standards, evidence was insufficient to support that the TBI residual conditions failed medical retention standards while the claimant was in service. k. Posttraumatic headaches/migraines documentation shows the following: (1) 24 May 2003 the applicant was seen for a 5-day history of headaches in the setting of congestion and fever (8 June 2016 Review of Residuals of TBI). The VA examiner indicated that they did not find any service treatment records for head injury or related headaches. (2) During the 23 October 2006 pre confinement exam, the applicant reported a headache at the time. His pain was rated 0-1/10. No symptoms were documented during the 13 November 2006 follow up. l. Notwithstanding the 2 April 2018 MEB Proceedings indicating that the migraine headache m-TBI Residual condition did NOT meet retention standards; review of contemporaneous evidence and relevant regulation supports that this condition DID meet retention standards or Army Regulation 40-501 chapter 3. Per AR 635-40 para 3-1, the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. In 2014, seven years after discharge, the claimant was first evaluated and referred to neurology for his headache condition. Per Army Regulation 40-501, if the neurologist feels a trial of prophylactic medicine is warranted, a 3-month trial of therapy can be initiated. If the headaches are not adequately controlled at the end of the 3 months, the Soldier will undergo an MEB for referral to a PEB. The applicant’s migraine headaches were satisfactorily controlled by the follow up visit with neurology. There were no other neurology visits that were specific for the headache/migraine condition—his headaches/migraines were managed by primary care without need for further neurology intervention. There was no documentation by neurology that the applicant’s migraine headaches were refractory to treatment now nor while the claimant was in service. m. Eye conditions documentation shows the following: (1) The applicant endorsed ‘visual change’ during the pre-confinement physical. He also reported a headache at the time. The eye exam section was blank. (2) The 13 November 2006 eye exam was documented as ‘normal’; however, there were no further details of any testing performed. n. The applicant reported several visual symptoms since the time of his head injury that interfered with work and daily tasks. During a visit in 2016, he clarified that he did not have blurred vision except when he had migraines (22 January 2016 Primary Care Outpatient Note). His visual symptoms had not been of such severity to have required rehabilitative training for daily functioning. In 2016, the applicant was referred to TBI Optometry for further evaluation to include tint evaluation for the light sensitivity complaints, and for vision therapy/training to increase vision efficiency. By the time of the MEB in 2018, he had not returned to start rehab vision training. The condition had not been shown to have failed conservative treatment measures. The MEB did not indicate that the applicant’s convergence disorder, accommodation disorders or photosensitivity conditions failed medical retention standards. It is presumed the condition wound not have been found unfitting for continued service. o. Tinnitus documentation shows the following: (1) 1 October 2002 enlistment audiogram showed hearing within normal limits for frequencies 500, 100, 200, 3000, 4000 and 6000. (2) 4 November 2005 audiogram showed very slight changes in both ears across almost all frequencies but the applicant’s hearing was still well within normal limits for all frequencies. The claimant was diagnosed with Tinnitus associated with normal hearing. (3) The 2 January 2014 Hearing Loss and Tinnitus DBQ shows the examiner determined that the applicant’s tinnitus was at least as likely as not (50 percent probability or greater) caused by or a result of military noise exposure. Neurologists endorsed that the applicant’s TBI also contributed to tinnitus. The applicant reported that his tinnitus made it difficult to sleep and that he had to have a TV or some other noise on. p. The review did not show that the applicant sought care for his tinnitus. The MEB did not indicate that the applicant’s tinnitus failed medical retention standards. It is presumed the condition wound not have been found unfitting for continued service. q. In summary, the PTSD, MDD, GAD conditions in conjunction with the m-TBI condition were determined to NOT meet retention standards. These conditions likely would have been found unfitting by the PEB due to their profound impact on functioning while in service. Although the applicant had ongoing PTSD characteristic symptoms, they are not used for rating criteria. Due to the near concurrent development of the applicant’s mental health conditions and TBI, and to the extensive symptom overlap; there was general consensus that it was not possible to differentiate which symptoms were attributable to each condition without speculation. Therefore, in accordance with VASRD principle section 4.14 Avoidance of pyramiding, one rating is applied for all four conditions. It was assessed by more than one examiner that the occupational impairment was largely due to the applicant’s mental health conditions (mainly PTSD related symptoms) rather than TBI. There was some variation in the assessment of the level of occupational and social impairment caused by the mental health conditions; however, both the MEB and the VA rating authority opined that the applicant’s behavioral health condition caused occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking and/or mood which corresponds to a disability rating of 70 percent (in accordance with 38 CFR Part 4, section 4.130 Schedule of ratings—mental disorders). The MEB indicated that the claimant’s level of impairment at the 70 percent level was manifested by the following: difficulty adapting to stressful circumstances including work or a work like setting; inability to establish and maintain effective relationships; and near continuous panic or depression affecting the ability to function independently, appropriately, and effectively. Had the applicant been discharged due to physical disability in 2008 rather than administratively discharged, he would have been placed on TDRL (Temporary Disability Retirement List) per 38 CFR Part 4, section 4.129 Mental disorders due to traumatic stress. He could have remained on TDRL for up to 5 years at the time. It was noted that the claimant was initially rated at 50 percent for PTSD in February 2014 by the VA, but the PTSD condition has been rated at 70 percent since 2016. r. The TBI condition was rated with the mental health conditions PTSD, MDD and GAD as previously discussed. Notwithstanding the applicant is currently and separately rated at 70 percent for the TBI condition, the ARBA medical reviewer non concurs with that decision. The rating was based on exam findings that were not found during other examinations and therefore would not be considered permanently disabling (Army Regulation 635-40, para 4-19a(2)). Although the pilot IDES program was initiated in 2007, the PEB was not bound to apply disability ratings. s. TBI residual conditions eye conditions (convergence disorder, accommodation disorder); posttraumatic headaches/migraines; and tinnitus did not fail retention standards and likely would not have been found unfitting by the PEB. t. Did NOT meet retention standards: * PTSD * MDD * GAD * m-TBI; likely unfitting, rated together due to symptom overlap u. DID meet retention standards: * TBI residual posttraumatic headaches/migraine * TBI residual eye conditions (convergence disorder, accommodation disorder) * TBI residual tinnitus * TBI residual cognitive impairment- incomplete medical basis for diagnosis; likely NOT unfitting, NOT rated v. Recommended disposition is permanent disability retirement at 70 percent for PTSD with MDD, GAD, and m-TBI under code 9411. It should be noted that this recommendation is NOT based on guidance related to liberal consideration. This recommendation is based on the ARBA medical reviewer’s opinion that there was sufficient contemporaneous corroborating evidence to grant relief based largely on the change in tone noted in the applicant’s emails to his parents after the sentinel event (the documented change from optimism to a sense of foreboding future); the applicant’s reported symptoms during the Mental Health Intake at Fort Hood and during the pre- confinement physical; and the resultant sustained inability of the claimant to fulfil his military responsibilities, namely deploy. 63. On 10 July 2023, a copy of the ARBA medical advisory opinion was provided to the applicant and his representing Counsel and they were given an opportunity to provide comments. 64. On 28 July 2023, Counsel responded, provided two exhibits, an Independent Medical Examination, dated 6 September 2021, and a VA Rating Decision, dated 25 January 2022, and replied to the advisory opinion, stating the following: a. The applicant submits this response to the 6 July 2023 advisory opinion ("AO'') prepared by the ARBA Medical Advisor. The AO concluded by recommending permanent disability retirement at 70 percent for PTSD with major depressive disorder, general anxiety disorder, and mild TBI. The applicant disagrees in one respect: the AO failed to properly evaluate the evidence of TBI, including a detailed in-person examination by a neurologist in September 2021. Proper consideration of the evidence compels the conclusion that the applicant did not meet retention standards for a moderate TBI, and therefore a permanent disability retirement rating of 75% is warranted. b. This case is before the Board on a second remand from the U.S. Court of Federal Claims and prior facts and proceedings will be summarized only briefly. The applicant enlisted in the U.S. Army in 2002, at the age of 18. While deployed in Iraq in February 2004, he fell from a 30-foot guard tower. Another Soldier found the applicant unconscious and lying in a pool of his own blood at the base of the tower. Before deploying again in 2005, the applicant went AWOL and, after a special court-martial, he agreed to a plea that included a bad conduct discharge. c. In 2014, the ADRB upgraded the applicant’s discharge status to general, under honorable conditions, recognizing that his combat deployment and PTSD were mitigating factors for his misconduct. In the same year, the VA service-connected the applicant for PTSD, TBI, depression, headaches, back pain, tinnitus, painful scar, and ulcers. d. In 2015 , the applicant applied to this Board for disability retirement benefits. After two appeals to the U.S. Court of Federal Claims and one to the U.S. Court of Appeals for the Federal Circuit, Judge Hertling again remanded the matter. The court's order directs, among other things, that " the ABCMR shall refer [the applicant’s] case for DES processing,'" the Board "shall give the [applicant’s] claim ' liberal consideration' regarding his diagnoses of PTSD and TBI,'' and "[t]he ABCMR shall complete the remand by 30 August 2023." e. The administrative record reflects that the applicant has undergone numerous examinations for TBI, including Dr. ’s 2015 neurological testing, a 2016 C&P optometry exam, and Dr. 's 2018 MEB evaluation. The AO had the opportunity to review these reports. In addition, in fall 2021, the applicant was examined by Dr. M.D., Ph.D, a neurologist. Dr. conducted a 2-hour interview and physical examination, which included neurocognitive testing. Dr. also undertook a comprehensive review of the applicant’s medical, military, and VA records, from a 1992 pre-enlistment CT scan to the VA’s 2021 rating decision. Dr. concluded that the applicant suffered from subjective and objective mild to moderate TBI symptoms that "can only be attributed to TBI." f. Neuropsychological testing showed that the applicant had cognitive deficiencies of "below 10 percent in many categories of left frontal , parietal, and temporal function," as determined by the Montreal Cognitive Assessment and Cambridge Brain Neuroscience Inventory tests. Dr. concluded that these results were "substantially below the achievements [the applicant] demonstrated on the ASVAB2 in 2002,", and were considerably below average for someone of his age and education. Dr. concluded that the applicant also suffers from motor dysfunction in his right hand and foot, which has resulted in a loss of coordination. The most recent neurologist to conduct an in- person evaluation of his TBI, Dr. concluded that the applicant has a "Traumatic brain injury, moderate." g. Dr. 's report undermines the AO conclusion regarding the applicant 's TBI, especially upon application of the " liberal consideration" standard, which is binding in this case. For instance, the 2015 report, referred to as "unique" by the advisory opinion, was not. Both opinions agree that there are moderate TBI symptoms and apraxia. This further reduces the weight which should be given to the 2014 and 2016 reports. h. Moreover, based on the report of Dr. , as well as all prior medical evidence, in January 2022 the VA determined to continue the applicant’s disability rating for TBI al 70 percent as seen in the January 2022 VA Decision. This is separate from his VA disability rating for PTSD of 70 percent and a combined disability rating of 100 percent. i. To this day, the applicant suffers from moderate to severe headaches, light and sound sensitivity, nausea, and sometimes vomiting. Often the headaches are so debilitating he cannot get out of bed. He experiences dizziness, tinnitus, and blurred vision. He has difficulty concentrating and remembering conversations. The AO did not consider Dr. 's report when it recommended a total disability rating of 70 percent that include a TBI the AO deemed only "mild." In light of Dr. 's 2021 examination and the VA 2022 opinion, the Board should grant the applicant permanent disability retirement with a rating of 75 percent. j. The Board should consider all the medical evidence of the applicant's TBI, including Dr. 's 2021 report and the 2022 VA TBI decision, and increase the applicant’s disability rating in accordance with the Veterans Affairs Schedule for Rating Disabilities to account for TBI incurred in service and residual symptoms. This should result in the maximum statutory rating of 75 percent for permanent disability retirement. 65. The Independent Medical Examination, conducted by Dr. , dated 6 September 2021, has been provided in full to the Board for review, and in pertinent part shows Dr. concluded that the applicant suffered from subjective and objective mild to moderate TBI symptoms that can only be attributed to TBI.66. The VA Rating Decision, dated 25 January 2022, shows the applicant’s evaluation of TBI with ataxia, which is currently 70 percent disabling, is continued and basic eligibility to Dependents’ Educational Assistance based on permanent and total disability status was established from 20 October 2021. 67. Based upon Counsel’s rebuttal, a second medical advisory opinion was obtained from the ARBA medical advisors. On 17 August 2023 the ARBA medical advisors provided an advisory addendum, which shows the following: a. This Addendum to the 06 July 2023 ARBA Medical Advisory Opinion, was created in answer to the 28 July 2023 Response to the ARBA’s 6 July, 2023 Advisory Opinion by [the applicant’s] counsel. With their response, the following new medical evidence was submitted: the 06 September 2021 neuropsychiatric evaluation by New Haven neurologist Dr. and the 25 January 2022 VA Rating Decision. It should be noted that these were not found in the previous casefile submitted and were not available for the previous advisory. Dr. ’s evaluation was also not among the others mentioned in the court remand document with the following instruction: “The ABCMR shall review the administrative record and consider the medical evaluations by Dr. , Dr. , Dr. , Dr. , and Dr. . The ABCMR shall not draw dispositive conclusions from the lack of documentation in the plaintiff’s records contemporaneous with the plaintiff’s alleged injury and shall not rely exclusively on Dr. ’s advisory opinion”. In short, [the applicant], through counsel, requests that the Board consider all the medical evidence concerning [the applicant’s] TBI and grant “maximum statutory rating of 75% for permanent disability retirement” instead of the total disability rating of 70% recommended in the 06Jul2023 ARBA Medical Advisory Opinion. b. New medical records summarized: (1) The 06 September 2021 neuropsychiatric evaluation results reportedly showed “below 10% in many categories of left frontal, parietal and temporal function” (by the Cambridge Neuroscience test). Dr. also stated that the physical exam showed right hand and foot apraxia and loss of coordination - his strength and reflexes were normal; but rapid movements were slowed in these regions, suggestive of apraxia. Current occupation for the past 7 years was working on foot as a mail courier in a building. Based on his evaluation and review of the claimant’s record, Dr. concluded that the following symptoms experienced by [the applicant], were attributable solely to traumatic brain injury (which he assessed to be moderate in severity): subjective symptoms of tinnitus, post traumatic headache and dizziness; as well as objective findings of motor apraxia, cognitive impairment, and visual dysfunction (convergency insufficiency). (2) 25 January 2022 VA Rating Decision. The VA applied a 70% separate rating based on findings in Dr. ’s 06Sep2021 neuropsychiatric evaluation. c. In the previous advisory, it was stated that there was an incomplete medical basis for the diagnosis TBI Residual, Cognitive Impairment—previous testing had shown normal testing results (for example, the claimant scored 27 out of 30 on the Folstein mini-mental status exam). Now, based on more comprehensive neuropsychiatric evaluation, cognitive impairment was confirmed by objective measures during Dr. ’s neuropsychiatric evaluation. d. Previously, it was noted that apraxia had only been documented by Dr. (August 2015). The applicant had been examined by neurologists during compensation and pension examinations in December 2014 (Initial TBI DBQ), and in June 2016 (Review TBI DBQ). Motor apraxia was not noted during these examinations. Additionally, during the 13 June 2014 VA Neurology Outpatient Consult Note exam, “good rapid alternating movements in all extremities” was documented by the attending neurologist Dr. . It is worth noting that current TBI research suggests that traumatic brain injury should be viewed as a chronic condition evolving over time, rather than a static event. e. The following encounters/events from in-service records were reviewed for any complaints/observations of incoordination, and/or issues with memory, concentration, or focus. None were found. (1) 24 May 2003 in service record the claimant was seen for a 5 day history of Headaches. (2) 30 June 2004 Fort Hood Mental Health Clinic. Three months after returning from Iraq, the claimant reported feeling depressed and that he could not take military life away from home. He reported feeling sadness, rage, anxiety, hopelessness, and loneliness. He reported the following observations which were consistent with signs of impairment in functioning: excessive anxiety, difficulty controlling worry, racing thoughts, poor and disrupted sleep; rapid breathing, rapid heartbeat, increased respiratory rate, decreased appetite, and frequent crying spells. His reported stressors at the time were separation from his girlfriend and family, and loss of all close friends. He was diagnosed with Adjustment Disorder. (3) The claimant was home with his parents while AWOL from November 2005 until May 2006. In later descriptions of his difficulties during this period, neither the claimant, his parents, nor his ex-wife mentioned any motor abnormalities. (4) An undated letter of support from the claimant’s SSG, wrote that he was aware that the claimant plead guilty to desertion. He wrote that despite that, the claimant was an outstanding soldier and his performance placed him in the top 10% of Soldiers he had supervised in his career. (5) During the 23 October 2006 Darnell Army Community Hospital pre- confinement exam, the claimant was ill at the time and reported dizziness and a headache. He rated his pain as 0-1 out of 10. The physical examination was normal— no neurologic symptoms were noted. No symptoms were documented during the 13Nov2006 follow-up visit. f. Concerning the severity of the TBI and ratings, per 38 CFR Part 4, §4.124a (Schedule of ratings–neurological conditions and convulsive disorders) for Evaluation of Cognitive Impairment and Subjective Symptoms, in Note (4) it is annotated: “The terms ‘mild,’ ‘moderate,’ and ‘severe’ TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned …”. Per Army regulation, the TBI condition (and residuals) must be rated based on the severity of the condition at (or near) the time of discharge from service. Army ratings are permanent, unlike ratings applied by the VA operating under different laws, which can vary as a condition worsens or improves over time. The claimant’s record did not contain complaints consistent with cognitive impairment until 29 May 2014 during a Mental Health Consult visit, at which time the claimant reported poor focus/concentration. The subjective symptoms reported during the 2006 preconfinement physical that could be attributed to TBI (namely headaches and dizziness), were mild. No symptoms were reported during the follow-up examination on 13 November 2006. Apparent mild or intermittent symptoms at the time, is consistent with the fact that there had been no indication that the claimant had failed his APFT or weapons qualification. In addition, he worked security and guard duty at Fort Hood after returning from being AWOL and his SSG did not note any issues with his performance. Moreover, he met physical fitness requirements to be eligible to deploy a second time. g. It would be expected that the claimant would report his most severe and worrisome symptoms. Indeed, during the 30 June 2004 Fort Hood Mental Health Clinic exam, he provided a vivid description of his mental health based on the symptoms reported. He did not report cognitive symptoms, nor problems with motor coordination at the time. Although he essentially endorsed great inner turmoil, he was apparently physically able to perform his duties. Based on the mild severity of the symptoms attributable to TBI that were reported at or near the time of discharge; it is less likely than not that they would have caused the condition to be found separately unfitting for continued service. h. Concerning the claimant’s request for 75% for permanent disability retirement, ratings are only applied in multiples of 10. A 75% would be an invalid rating for any single condition or for any total rating for combined conditions. All the claimant’s examinations for TBI related issues were reviewed. The 10 TBI Facets for rating criteria were reviewed as well as the appropriate incremental ratings for increasing severity. Even with the most liberal interpretation of criteria to include adding subjective tinnitus to the in-service symptoms which was not reported while in service; the severity of the claimant’s subjective symptoms for Facet 7 would warrant a maximum 10% rating for the TBI condition for ‘three or more subjective symptoms that [could] mildly interfere with work such as intermittent dizziness, daily mild to moderate headaches, and tinnitus’. The total combined rating would still be 70%: 70% for PTSD combined with 10% for the TBI is equal to 73, which rounds to 70% in accordance with instructions for rating per 38 CFR Part 4, §4.25—Combined ratings table. Recommendation: No change is recommended. The recommended disposition remains permanent disability retirement at 70% for PTSD with MDD, GAD, and m-TBI under code 9411. 68. A copy of the ARBA medical advisory opinion addendum was provided to the applicant and his representing Counsel and they were given an opportunity to provide comments. 69. On 25 August 2023, Counsel responded, provided two exhibits, a 2016 VA Personal Information Report containing results of a C&P Optometry-Ophthalmology examination, and a 2014 VA C&P examination, and replied to the advisory opinion, stating the following: a. [The applicant] submits this Supplemental Response to the 17 August 2023 revised advisory opinion (Revised AO) prepared by the Army Review Board Medical Advisor. The Revised AO concluded by recommending “permanent disability retirement at 70%,” Revised AO 8, resulting from a 70% rating for PTSD with Major Depressive Disorder, General Anxiety Disorder, and a 10% rating for mild TBI. The VA, by contrast, rates [the applicant’s] TBI as 70% disabling. Proper consideration of the evidence, as dictated in the 2 May 2023 opinion and order, see [Applicant] v. United States, 2023 WL 3197825 (Ct. Cl. May 2, 2023), compels the conclusion that [the applicant’s] TBI requires at least a 40% rating, warranting a combined permanent disability retirement rating of at least 80%. By operation of statute, this rating results in a retirement multiplier of 75%. 10 U.S.C. § 1401(a), Formula No. 1(2). b. Contrary to Judge ’s order and the regulations for rating disabilities found in 38 C.F.R. Part 4, the Revised AO relies upon a lack of evidence from [the applicant’s] time in-service and displays a preference for deficient medical evidence over the opinions of comprehensive and authoritative civilian experts in concluding that [the applicant’s] TBI symptoms merit only a 10% rating. Were the ABCMR to adopt the Revised AO, it would reproduce the very defects against which Judge warned in his May 2023 order. [Applicant], 2023 WL 197825, at *11 (a “lack of contemporaneous documentation of the plaintiff’s . . . TBI is not dispositive,” but may reflect only that “the Army had priorities other than documenting the plaintiff’s non-combat injury, which may not have seemed permanent or severe at the time.”). The Court also further clarified that the Disability Evaluation System process, of which the Revised AO is a part, “must give [the applicant’s] claim liberal consideration,” and that the ABCMR must “appropriately consider” the medical evaluations of civilian medical experts such as Drs. and . Id. (quotation marks removed) (emphasis added). The schedule for rating disabilities under 38 C.F.R. Part 4 likewise requires that “each disability [must] be viewed in relation to its history,” as persistent features of a disability may easily be overlooked. Id at § 4.2. In interpreting reports of examinations, the rating specialist must therefore account for “the whole recorded history, reconciling the various reports into a consistent picture.” Id. (emphasis added). c. The Revised AO fails to create a picture of [the applicant’s] disabilities consistent with the whole record. Instead, the opinion largely relies on deficient contemporaneous medical evidence to argue that [the applicant] suffered from symptoms meriting only a 10% disability rating for the TBI condition, as calculated from the 10 Facets of TBI scale (see 38 C.F.R. §4.124a) prior to his separation, and to deficient post-service medical evidence over far more comprehensive and probative reports and diagnoses from civilian experts. For instance, the Revised AO cites the 2004 Fort Hood Mental Health Clinic intake form for the assertion that [the applicant] was not manifesting TBI symptoms at the time, even though [the applicant] was misdiagnosed during this visit, and in fact was never even examined by a qualified diagnostician. See A.R. 000804, 873. A letter from Dr. , who evaluated [the applicant] six times in 2012 and 2013, notes that [the applicant] presented to the Fort Hood clinic with physical symptoms associated with a TBI. See A.R. 000873. A later report from Dr. states that [the applicant] had difficulty reading text and focusing on words for some time immediately after the fall. A.R. 000185. The Revised AO also relies upon the exam notes of VA neurologist Dr. , who conducted [the applicant’s] Compensation and Pension (C&P) examination for TBI in 2014, despite at least one glaring factual inaccuracy in the exam notes and a lack of specific or objective findings to support his conclusion that [the applicant’s] motor activity was “normal.” d. Moreover, the Revised AO ignores or fails to account for the other experts who have concluded that [the applicant] has symptoms of moderate TBI. The failure to self- report the severity of symptoms prior to 2014 is not a reliable basis for concluding that symptoms were not as severe as they were. Judge ’s order requires liberal consideration of the severity of [the applicant’s] TBI—meaning that the Revised AO must give greater weight to post-service records than it currently does. Furthermore, contrary to the Revised AO’s assertion that “[i]t would be expected that the claimant would report his most severe and worrisome symptoms,” Revised AO 7, Dr. noted that [the applicant] has a “tendency to minimize his symptoms,” due to an “impaired awareness” of his own disabilities. A.R. 000205, 211 (report of Dr. ). The VA has accepted the credibility of these experts’ reports, assigning [the applicant] a rating of 70% for his TBI, “the highest level of severity.”4 See Response to the Army Review Board Agency’s July 6, 2023 Advisory Opinion (hereinafter “Cl.’s Response”), Ex. B (Jan. 2022 VA Decision). e. Finally, 38 C.F.R. § 4.3 establishes that reasonable doubt as to the degree of disability “will be resolved in favor of the claimant.” In view of the balance of medical evidence, there is at least reasonable doubt whether [the applicant’s] TBI is merely 10% disabling. Accordingly, under 38 C.F.R. § 4.3, his rating should be higher. f. The totality of [the applicant’s] medical evidence—including multiple evaluations by trained neurologists—justifies a rating of at least “2” on the 10 TBI facets scale, under both the “Subjective symptoms” and the “Motor activity” facets. [The applicant] should therefore be rated at least 40% disabled for TBI. g. As indicated by Dr. ’s 2022 report, [the applicant] is currently disabled to a rating level of “3” under the motor activity facet because of apraxia. See Cl.’s Response, Ex. A at 6 (report of Dr. ). The Revised AO discredits this report as probative of [the applicant’s] disability at the time of separation, pointing instead to Dr. s 2014 C&P exam notes. Revised AO 4. However, as discussed supra, there is no evidence that [the applicant] was meaningfully assessed for motor activity symptoms prior to separation, and Dr. F___’s 2014 exam notes do not indicate a record of specific findings regarding motor activity or reflexes to support his conclusion that [the applicant’s] motor activity was “normal”. Meanwhile, Dr. R___’s August 2015 report provides specific, comprehensive, and objective findings and a conclusion consistent with the finding that [the applicant] suffered from apraxia during the same time period. See A.R. 000187–89 (report of Dr. ). In contrast, Dr. ’s 2014 and 2016 TBI exam reports detail no findings, but merely check off a finding of normal motor activity, without a specific discussion of an objective basis for his conclusion. Dr. ’s report carries more probative value of the motor activity existing in 2015 than Dr. ’s reports—a conclusion also reached by the VA in [the applicant’s] 2016 disability rating decision. A.R. 000135–136. h. The totality of the evidence regarding [the applicant’s] subjective symptoms associated with his TBI also merits a rating of at least “2” on the TBI scale. Regulations require assigning a severity level of 2 for “[t]hree or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships.” 38 C.F.R. § 4.124a. Reports from Dr. and Dr. identify at least 11 subjective symptoms caused by TBI, well beyond the minimum of three subjective symptoms required to find a severity level of 2 for TBI. Dr. and Dr. concluded that [the applicant] suffers from (1) painful daily headaches, (2) migraine headaches at least eight times a month, (3) prostrating headaches, (4) tinnitus, (5) hypersensitivity to light, (6) intermittent dizziness, (7) intermittent blurred or double vision, (8) a mildly deconjugate gaze, (9) difficulties tracking moving objects, (10) difficulties focusing on objects appropriately, (11) and difficulties reading. A.R. 000184– 90; A.R. 000202–11; see also Response to the Army Review Board Agency’s July 6, 2023 Advisory Opinion, Ex. A at 3–6 (report of Dr. ). i. [The applicant] has been suffering from these symptoms since 2004. A 2016 VA eye exam confirmed that [the applicant] has suffered “several visual symptoms since the time of his injury [in 2003] that interfere with work and daily tasks,” which it describes as an “eye disorder due to traumatic brain injury.” Ex. A at 9, 13 (2016 VA Personal Information Report containing results of C&P Optometry-Ophthalmology examination) (emphases added). A 2014 C&P exam diagnosed [the applicant] with “post-traumatic headaches most likely related to head injury sustained in Iraq,” noting that his symptoms “have been consistent since head injury and there is no evidence of headaches existing upon entrance or prior to service.” Ex. B at 7. Dr. ’s report notes that [the applicant] suffered a “severe concussive injury at the same time [as the TBI]” in 2004 and “has suffered with headaches ever since.” A.R. 000187. The headaches are “causally related” to the TBI, id., rising to the level of chronic migraine syndrome, A.R. 000188. As the Revised AO itself notes, [the applicant] presented with both dizziness and headache at his 2006 pre-confinement physical examination, see Revised AO 5.e. j. The Board should consider the medical evidence of [the applicant’s] TBI in light of the whole record, giving proper consideration (that is, liberal consideration) to the post-service evidence as directed in Judge ’s May 2023 opinion. [The applicant’s] subjective symptoms and motor activity each warrant a rating of “2” or more, corresponding to a 40% disability rating for TBI. Combining the 40% rating for the TBI with the 70% rating of [the applicant’s] PTSD results in a combined rating of 82% under 38 C.F.R. Part 4, § 4.25. Under that regulation’s rounding guidelines, [the applicant] should therefore be given a combined permanent disability rating of 80%, yielding a retirement multiplier of 75%. 10 U.S.C. § 1401(a), Formula No. 1(2). 70. Counsel’s response in its entirety, as well as the two accompanying exhibits were provided to the Board for their review. 71. 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. 72. 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. 73. 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. The Board carefully considered through counsel the applicant's record of service, documents submitted in support of the petition, and the medical and lay evidence both before and after the applicant’s discharge from the Army based on law, policy, and regulation. The Board found by a preponderance of evidence that the applicant had medical conditions, specifically posttraumatic stress disorder (PTSD), major depressive disorder (MDD), generalized anxiety disorder (GAD), and traumatic brain injury (TBI), that failed retention standards and rendered him unfit for military service. Because the greater weight of the evidence reflects the applicant had unfitting conditions at service separation, the Board determined that referral into the Disability Evaluation System (DES) was not needed prior to correcting the record to show a medical disability retirement. 2. The Board next considered the appropriate percentage for which the applicant’s conditions would have been rated under the Department of Veterans Affairs (VA) Schedule for Rating Disabilities at the time of separation from service. The Board reviewed the General Rating Formula for Mental Disorders and the rating criteria for TBI and applied them to the lay and medical evidence. 3. The Board found that, had the applicant been separated for disability in 2008, he would have been assigned an 80% rating and eventually placed on the permanent disability retired list (PDRL). A preponderance of evidence reflects that applicant’s PTSD, MDD, and GAD would have been assigned a 70% rating based on the level of social and occupational impairment, including difficulty adapting to stressful circumstances at work, inability to establish and maintain effective relationships, and near continuous panic or depression affecting the ability to function independently, appropriately, and effectively. 4. The Board further found the applicant would have been assigned a 40% rating based on moderate TBI symptoms. The Board noted the conflicting evidence as to whether the applicant’s symptoms would have been rated as mild or moderate, but found sufficient evidence reflects moderate TBI symptoms at service separation. The evidence reflects three or more subjective symptoms associated with the applicant’s TBI. 5. The Board determined that the symptoms of TBI were separate and distinct from the diagnoses of PTSD, MDD, and GAD warranting separate ratings for these conditions. Combining the 40% rating for TBI with the 70% rating of the applicant’s PTSD, MDD, and GAD results in an overall rating of 80%. As such, based on a preponderance of evidence, the Board determined correction to the applicant’s record is warranted to show he was placed on the permanent disability retirement list (PDRL) with an 80% rating for PTSD, GAD, MDD, and TBI in 2008. 6. Finally, to the extent the applicant requests payment of his legal fees, such relief is outside the purview of the Board. Army Regulation 15-185 prohibits the payment of attorney’s fees or other expenses incurred by or on behalf of an applicant in connection with an application for correction of military records under Title 10, U.S.C., section 1552. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant correction of the applicant’s record. The Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was retired for permanent disability with an 80 percent disability rating effective 13 March 2008, with placement on the Permanent Disability Retired List the following day. 2. The applicant should receive any pay and allowances he is due as a result of this correction, less any entitlements already received. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 2. Title 10, U.S. Code, section 1552(h) provides that, in claims for review of a discharge or dismissal based in whole or in part on matters relating to posttraumatic stress disorder (PTSD) or traumatic brain injury (TBI) as supporting rationale, or as justification for priority consideration, and whose PTSD or TBI is related to combat or military sexual trauma (MST), the board shall review medical evidence of the Secretary of Veterans Affairs or a civilian health care provider that is presented by the claimant; and, review the claim with liberal consideration to the claimant that PTSD or TBI potentially contributed to the circumstances resulting in the discharge or dismissal or to the original characterization of the claimant’s discharge or dismissal. 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 an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-1 states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. The overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation must be considered. All relevant evidence must be considered in evaluating the fitness of a Soldier. Findings with respect to fitness or unfitness for military service will be made on the basis of the preponderance of the evidence. b. Paragraph 3-2 states 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. c. Paragraph 3-4 states 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. d. Paragraph 4-1 states that a Soldier charged with an offense under the Uniform Code of Military Justice (UCMJ) or who is under investigation for an offense chargeable under the UCMJ, which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless – (1) the investigation ends without charges; (2) the officer exercising proper court-martial jurisdiction dismisses the charges; or, (3) the officer exercising proper court-martial jurisdiction refers the charges for trial to a court-martial that cannot adjudge such a sentence. e. Paragraph 4-2 states that a Soldier may not be referred for, or continue, disability processing if under sentence of dismissal or punitive discharge. If the sentence is suspended, the Soldier’s case may then be referred for disability processing. A copy of the order suspending the sentence must be included in the Soldier’s records. If action to vacate the suspension is started after the case is forwarded for disability processing, the PEB serving the area must be promptly notified to stop disability processing. Disability processing may resume if the commander decides not to vacate the suspension. 5. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 3, paragraph 3-11, provides that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review is required to be completed and the affirmed sentence ordered duly executed. d. paragraph 1-33c states that disability processing is inappropriate if UCMJ action has been initiated. 7. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 8. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230005522 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1