IN THE CASE OF: BOARD DATE: 24 January 2024 DOCKET NUMBER: AR20230006832 APPLICANT REQUESTS: through Counsel: * physical disability retirement with a disability rating of no less than 50 percent, in lieu of honorable discharge due to a physical condition, not a disability * personal appearance before the Board via video or telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Table of Contents * Table of Authorities * List of Cited Exhibits (113 pages) - * 1 - Certificate of Release or Discharge from Active Duty * 2 - Enlistment Medical Examination, 14 December 2000 * 3 - Enlisted Record Brief * 4 - Award of the U .S. Army Airborne Badge * 5 - Award of the U .S. Army Air Assault Badge * 6 - Award of the U.S. Army Pathfinder Badge * 7 - Department of the Army Award Good Conduct Medal * 8 - Department of the Army Award of the Anny Achievement Medal * 9 - Noncommissioned Officer Evaluation Report (NCOER), 2003 * 10 - NCOER, 2004 * 11 - NCO Academy Evaluation Report * 12 - Chapter Medical Assessment and Examination * 13 - Chapter Medical History Report * 14 - Chapter Mental Status Evaluation Report by Psychologist * 15 - Report to Suspend Favorable Personnel Actions (DA Form 268), 24 August 2005 * 16 - Developmental Counseling Form (DA Form 4856), 22 August 2005 * 17 - Reassignment Orders to a Separation Transition Center, 8 September 2005 * 18 - Counseling statements from Brigade, Battalion and Company leadership authorizing separation under Anny Regulation 635-200, Chapter 5, 26 August 2005 * 19 - Re-enlistment Contract, 19 December 2003 * 20 - Veteran Affairs (VA) Rating Decision, 21 December 2005 * 21 - Post-Traumatic Stress Disorder (PTSD) Evaluation, 9 November 2005 * 22 - Memorandum from the Clinical Psychologist at the Adult Behavioral Health Center on Fort Campbell * 23 - Statement Request for Mental Health Evaluation, 3 November 2006 * 24 - PTSD Rating Increase from 50% to 70%, 18 December 2020 * 25 - VA Rating Decision 2021, August 2021 * 26 - VA Rating Decision 2022, 22 April 2022 * 27 - VA Rating Decision, 26 April 2022 * 28 - NCOER (2005) * 29 - National Veterans Legal Services Program Intake Form * 30 - Declaration of Applicant * Counsel’s brief (18 pages) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. Counsel provides an 18 page brief, which is briefly summarized below; however, this brief is provided to the Board to read in full: a. The applicant did not have any mental health conditions when he enlisted, in fact, he performed exceedingly well as a Soldier; he received numerous accolades, awards, and favorable evaluations. He was promoted to staff sergeant and deployed on 2 occasions to Afghanistan, and once to Iraq; his third and final deployment. However, the applicant’s mental health changed dramatically due to the events he experienced during his deployment in Iraq. While he experienced occasional fighting in Afghanistan, his combat experiences in Iraq were much more frequent, dangerous, and intense. In one traumatic experience, he was forced to engage in hand-to hand combat in an effort to save his life, having to shoot the man he was fighting at close range and was subsequently covered with the man’s blood and brain matter. Upon returning from this deployment, the applicant found himself increasingly preoccupied with the close range killing of an enemy combatant and described feeling like he was a different person. In March 2005, he sought treatment from the Adult Behavioral Health Services (ABHS) clinic on Fort Campbell, KY. b. The psychologist noted that the applicant’s reported symptoms were consistent with a diagnosis for post-traumatic stress disorder (PTSD), prescribed him medications, and saw him on four occasions/sessions. However, in early August 2005, his brigade commander, informed all noncommissioned officer (NCOs) in his unit that he was “chaptering” anyone with PTSD or a mental health related diagnosis. c. On 22 August 2005, the applicant received a counseling statement from his company commander that explained he was being separated from the Army due to mental illness under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, for other designated physical or mental condition, which is reserved for conditions such as other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired. The counseling further informed him he would be required to clear the post within the next 2 weeks because of the upcoming deployment. On that same day, his company commander flagged him. His commander then sent him to ABHS, where a clinic psychologist evaluated him. He was formally diagnosed with PTSD and major depressive disorder (MDD) and was found unfit for continued service. d. In a memorandum completed after the applicant was discharged, the psychologist concluded that the therapy and medications were only minimally beneficial and on 22 August 2005, the recommendation for separation was made to the unit. The psychologist concluded the applicant’s symptoms were not amenable to hospitalization, short-term treatment, rehabilitative transfer, training or reclassification and that it was unlikely efforts to rehabilitate or develop him would be successful. The psychologist opined the applicant’s condition was so severe his ability to function effectively in the military environment was significantly impaired and he had no potential for useful service. Consequently, the psychologist recommended the applicant be separated from the Army and the chief of the ABHS concurred with the recommendation. Given these findings, the Army should have referred the applicant to a Medical Evaluation Board (MEB). Unfortunately, they erroneously pursued an expedited administrative separation that was entirely inapplicable to him. e. The applicant was improperly separated from the Army under Army Regulation 635-200, paragraph 5-17, because at the time of his discharge, he was suffering from PTSD and MDD. He should have been referred to a MEB and a Physical Evaluation Board (PEB) for a medical retirement as opposed to being administratively separated under paragraph 5-17. f. In December 2005, the Department of Veterans Affairs (VA) granted the applicant a service-connected disability rating of 50 percent for PTSD. In May 2020, the applicant completed an additional PTSD examination that resulted in his disability rating for PTSD increasing form 50 percent to 70 percent. g. The Army erred by administratively separating the applicant for PTSD (referred to in his separation orders as a “condition, not a disability”) under a paragraph reserved for non-compensable conditions such as an adjustment disorder or personality disorder. The applicant was diagnosed with PTSD and MDD, which are psychiatric conditions within the meaning of Army Regulation 40-501 (Standards of Medical Fitness) and the Diagnostic and Statistical Manual of Mental Disorders (DSM) IV that are compensable. Per Army Regulation 40-501, the causes for referral to the DES for an MEB include mood disorders, anxiety, somatoform, or dissociative disorders. At the time of the applicant’s discharge, he was diagnosed with PTSD and MDD, which are recognized by medical professionals to result in subsequent anxiety, depression, and occupational problems. These are disabilities that undoubtedly require referral to the DES. h. The Army was required to refer the applicant to the DES for his PTSD and MDD. The fact that the VA diagnosed the applicant with PTSD within a few months of his discharge is further evidence that he should have been referred to the DES for a medical retirement. The psychologist specifically stated in their report that the applicant meets the criteria for a diagnosis of PTSD and his condition is directly related to his wartime experiences, moderate in severity and meaningfully disruptive to him and to his successful functioning in wide-ranging psychosocial domains. The Department of Defense (DOD) allows for administrative separations for conditions not constituting a physical disability, such as adjustment disorders, personality disorders, and other designated physical or mental conditions. The Army regulations in effect at the time of the applicant’s discharge authorized administrative separation for such conditions that interfere with assignment to or performance of duty, but only insofar as they did not amount to a compensable disability defined by Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and the VA Schedule for Rating Disabilities (VASRD). Both PTSD and MDD were compensable disabilities pursuant to Army Regulation 635-40 and the VASRD at the time of the applicant’s discharge. The Army was therefore required to refer the applicant to the DES for MDD and PTSD, which are disabilities and compensable conditions that impeded him from reasonable performance or resulted in a limitation of duty or interference with effective military performance. Consequently, the Army erred in discharging the applicant under a regulation authorized only for conditions that do not amount to disabilities. i. Had and MEB and PEB evaluated the applicant, they would have determined he was more than 50 percent disabled and unfit for further military service due to his PTSD and MDD. Because the Army failed to properly evaluate the applicant, he has been denied monthly military disability retirement income and TRICARE benefits, to which he and his family are entitled as a result of his service. This error cannot be corrected. The manifest weight of evidence demonstrates that the applicant suffered from service- connected PTSD prior to his discharge what was at least 50 percent disabling. Accordingly, the Board should recommend that all records pertaining to the applicant be corrected to reflect his placement on the Permanent Disability Retired List (PDRL) based on a disability rating for PTSD at 50 percent and further award him any retired back pay he is owed as a result of this error. 3. The applicant states: a. He served in the Army form 1 August 2000 to 20 September 2005, earning the rank of SSG prior to his separation. He is a graduate of the U.S. Army Airborne School, Pathfinder School and the Basic Noncommissioned Officer Course (BNCOC). He completed two combat deployments with the 101st Airborne Division in the beginning of the Global War on Terrorism, to Afghanistan in 2002 and Iraq in 2003. His military awards include the Army Commendation Medal, Army Achievement Medal (with oak leaf cluster), the Army Good Conduct Medal, and the Combat Infantryman Badge. b. He began to experience depression and anxiety due to his combat experiences in Afghanistan and Iraq, following his deployment to Iraq. He was encouraged by his leadership to seek mental health support, so he sought help in March 2005. In August 2005, his brigade commander assembled all of the NCOs in a remote training area during a pre-deployment field training exercise and told them that anyone with PTSD was a liability and would not deploy as a Soldier in his brigade. Within a few weeks, any NCO who had sought therapy or treatment for PTSD at Fort Campbell’s Behavioral Health Clinic received a counseling statement explaining they were being “chaptered out.” On, 22 August 2005, his company commander called him into his office and informed him he was being “chaptered out” of the Army due to his mental illness. c. At the time, he was absolutely devastated. His plan was to pursue a career in the military and retire as a command sergeant major. During his career, he was promoted ahead of his peers. Further, he had completed several key schools as a junior Soldier and acquired significant combat experience within a few years of his enlistment. His reputation was absolutely excellent in his unit and among his peers. After he was separated from the Army, he was inconsolable for several years. d. His PTSD has greatly affected various aspects of his life. For a while, he was unable to live happily and enjoy his life as a civilian. It took a significant toll of his relationships with his loved ones, especially his wife. Due to his PTSD and his abrupt separation from the Army, he has had continuous difficulty obtaining gainful employment because he believes the career he was supposed to pursue was unfairly taken away. On the rare occasion that he manages to obtain a job, he is constantly on edge that he will lose it due to his PTSD-related symptoms and the past trauma of essentially being fired from the Army without due process. In his current role as a delivery worker, he occasionally has difficulty performing because of his PTSD-related depression and anxiety. e. In his personal life, he struggles to adapt to even the most basic circumstances. He cannot tolerate loud noise or loud music or attend large public gatherings. He has tremendous difficulty sleeping and suffers from night terrors. With his wife and children, despite his best efforts, he is quick to anger and easily irritated. As much as he wants to be the upbeat and cheerful husband and father that he strives to be, he struggles deeply with bouts of depression. While it may not undue the last 17 years of his life, he believes receiving a medical retirement will significantly help him and his family move forward. 4. A partial Standard Form 88 (Report of Medical Examination), dated 14 January 2000, shows the applicant underwent medical examination on the date of the form and was found qualified for enlistment with a physical profile rating of “1” in all factors. 5. The applicant enlisted in the Regular Army on 1 August 2000 and was awarded the Military Occupational Specialty (MOS) 11B (Infantryman). 6. The applicant deployed to Afghanistan, from 15 March 2002 through 14 October 2002. 7. The applicant’s DA Form 2166-8 (NCOER) covering the period from October 2002 through September 2003, includes the following bullet comments from his Rater: * one of the most highly respected NCOs in the platoon * chosen to be the lead fire team during the assault on Baghdad International Airport due to his knowledge and proficiency level * possesses unyielding stamina and mental toughness during 7 continuous months of complex combat and stability operations * unlimited potential, demonstrated his abilities to accomplish any assigned tasks with excellent results 8. The applicant deployed to Iraq, from 15 January 2003 through 26 January 2004. 9. The applicant’s DA Form 2166-8 covering the period from October 2003 through August 2004, includes the following bullet comments from his Rater: * his sound judgement combined with tactical knowledge enabled his squad to accomplish all combat missions with great results * led on presence patrols, traffic control points (TCPs), and a raid in Rabea’s, Iraq resulting in the seizure of 47 illegal weapons and over 20 detainees * consistently demonstrated a “lead by example” attitude in both training and Operation Iraqi Freedom 10. A DD Form 2807-1, dated 22 August 2005, shows the applicant provided his medical history in conjunction with a medical examination for the purpose of Army separation. He indicated on the form his current medications included Ambien and Zoloft. He also indicated he had a head injury, frequent trouble sleeping, received counseling, and was evaluated or treated for a mental condition, to include counseling for PTSD and nightmares that was currently ongoing. 11. A DA Form 3822-R (Report of Mental Status Evaluation), dated 22 August 2005, shows: a. The applicant was evaluated at Adult Behavioral Health Service on the date of the form. b. He was found to be mentally responsible, have the mental capacity to understand and participate in the proceedings, and met the retention requirements of Army Regulation 40-501, chapter 3. c. His listed diagnoses are PTSD and MDD, recurrent, moderate. d. The findings show he displays characteristics of PTSD and MDD, which results in subsequent anxiety, depression and occupational problems. He has significant social stressors that contribute to his signs and symptoms. e. This condition is not amenable to hospitalization, short-term treatment, rehabilitative transfer, training, or reclassification to another type of duty within the military. It is unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the military will be successful. f. Based upon the evaluation, the diagnostic impression is PTSD and MDD and represents a psychiatric condition within the meaning of Army Regulation 40-501, Army Regulation 635-200, and DSM IV, which interferes with the member’s ability to perform duty. This condition is a situational maladjustment to stressors inherent in military duty. Further, the disorder is so severe that the member’s ability to function effectively in the military environment is significantly impaired. It was the opinion of the examiner that the member has no potential to meet mobilization requirements and clearly has no potential for useful service under conditions of full mobilization. g. The recommendation is for the command to proceed with discharge from the Army in accordance with Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions. 12. A DA Form 4856 (Developmental Counseling Form) shows on 22 August 2005, the applicant was counseled to inform him that he was being honorably separated from the Army under the provisions of Army Regulation 635-200, paragraph 5-17 due to a mental illness that significantly impairs his ability to perform his military duties. He would be required to clear the post in the next 2 weeks due to the upcoming deployment. 13. On 22 August 2005, a Report to Suspend Favorable Personnel Action (FLAG) was initiated. The action was approved on 24 August 2005. 14. On 26 August 2005, the applicant was informed by his immediate commander of his initiation of action to honorably separate him because of other designated physical or mental condition, under the provisions of Army Regulation 635-200, paragraph 5-17. The applicant was advised of his right to consult with counsel and submit statements in his own behalf. 15. On 26 August 2005, the applicant acknowledged having received notification from his immediate commander of his initiation of action to separate him under the provisions of Army Regulation 635-200, paragraph 5-17 and having been advised of his right to consult with counsel prior to making any election of rights. 16. The applicant’s NCOER covering the period from September 2004 through August 2005, shows he was rated “Excellence” in all portions of Part IV (Rater) -Values/NCO Responsibilities). 17. On 8 September 2005, the applicant acknowledged having been afforded the opportunity to consult with appointed counsel and waived his right to consult with counsel. He also indicated he did not submit statements on his own behalf. 18. Two undated memoranda show the applicant’s battalion and brigade commanders both recommended the applicant’s honorable separation under the provisions of Army Regulation 635-200, paragraph 5-17, because of other designated physical or mental conditions. The applicant’s battalion commander felt the applicant possessed the potential for useful service and recommended his transfer to the Individual Ready Reserve (IRR), whereas his brigade commander did not feel he possessed potential for useful service under conditions of full mobilization and recommended his discharge without transfer to the IRR. 19. An undated memorandum shows the discharge approval authority directed the applicant’s honorable discharge under the provisions of Army Regulation 635-200, paragraph 5-17, with no transfer to the IRR. 20. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: a. He was honorably discharged on 20 September 2005, under the provisions of Army Regulation 635-200, paragraph 5-17, due to a physical condition, not a disability. He received a separation code of "JFV" and a reentry code of "3." b. He was credited with 5 years, 1 month, and 20 days of net active service. c. Among his awards, decorations, medals, and badges he was awarded or authorized are the following: * Army Achievement Medal (2nd Award) * Afghanistan Campaign Medal * Army Commendation Medal * Presidential Unit Citation * Army Good Conduct Medal * Global War on Terrorism Expeditionary Medal * Combat Infantryman Badge * Parachutist Badge * Pathfinder Badge * Air Assault Badge 21. A VA Compensation and Pension Exam Report for Initial Evaluation for PTSD Exam, has been provided in full to the Board for review and shows in pertinent part the applicant underwent examination on 29 October 2005, was diagnosed with service- connected PTSD directly related to his wartime experiences. 22. A VA Rating Decision, dated 21 December 2005, shows the applicant was granted the following service-connected disability ratings effective 21 September 2005: * PTSD, 50 percent * Tinnitus, 10 percent 23. A VA Rating Decision, dated 18 June 2020, shows the applicant’s service- connected disability rating for PTSD was increased from 50 percent to 70 percent effective 14 May 2020. 24. Multiple additional VA Rating Decisions and letters, subsequent to the June 2020 Rating Decision have been provided in full to the Board for review. 25. 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. 26. MEDICAL REVIEW: a. Background: The applicant is requesting a physical disability retirement with a disability rating of no less than 50 percent, in lieu of honorable discharge due to a physical condition, not a disability. The applicant asserts PTSD and other mental health are related to his request. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * The applicant enlisted in the Regular Army on 1 August 2000. * The applicant deployed to Afghanistan, from 15 March 2002 through 14 October 2002. * The applicant deployed to Iraq, from 15 January 2003 through 26 January 2004. * The applicant was seen for a mental status exam (MSE) on 22 August 2005. * A DA Form 4856 (Developmental Counseling Form) shows on 22 August 2005, the applicant was counseled to inform him that he was being honorably separated from the Army under the provisions of Army Regulation 635-200, paragraph 5-17 due to a mental illness that significantly impairs his ability to perform his military duties. * The applicant was honorably discharged on 20 September 2005. * See record for full list of awards, decorations, medals and badges as well as other successes noted in his NCOERs. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), DD Form 214, documents from his service record and separation, as well as his counsel’s brief, a self-authored statement, and copies of much of his service record, VA rating decisions, PTSD evaluation, memo from clinical psychologist, PTSD rating increase and other related documents as part of his counsel’s file. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant is requesting a physical disability retirement with a disability rating of no less than 50 percent, in lieu of honorable discharge due to a physical condition, not a disability. See the applicant’s statement and legal brief for full account of his experience. In sum, the applicant was actively in treatment for mental health, to include PTSD and major depressive disorder (MDD), and in August of 2005 his brigade commander reportedly stated that he was planning to chapter anyone with PTSD or a mental health- related diagnosis. This left the applicant in “shock” given previous leadership had encouraged the soldiers to get help if they were struggling. The applicant and his counsel assert that he should have been referred to a Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) for medical retirement as opposed to being chaptered under 5-17. e. The applicant’s time in service predates consistent use of electronic health records (EHR), though applicant does have some records for review. Supporting documents suggest he was seen numerous times (at least four) for therapy and medication management. Per the applicant’s EHR, he was seen on 21 April 2005, reported he would be ETSing, declined further treatment, and would follow up with the VA. Though, during this appointment he was diagnosed with MDD and PTSD (provisional with a rule out of anxiety – not otherwise specified). His records around this time do also indicate he’d been prescribed medication for sleep the week prior, though there was no encounter for review. He was seen again on 16 August 2005 for medication management. It was noted that his history of present illness was “Loss of interest in activities, anhedonia, insomnia, nightmares, decreased functioning ability, anxiety, recent emotional stress, high irritability, interpersonal relationship problems, depression, and loss of interest in friends and family.” On the same date he saw a psychologist, his symptoms of PTSD were discussed, as well as other psychosocial stressors, and the applicant reportedly noted he felt a 5-17 would be best. His records reflect that on 18 August 2005 the company commander consulted with mental health about the status of the service member (SM), as he’d recommended the SM get help several months ago. The consulting psychologist reported that his symptoms would likely cause an issue down range and noted he’d recommend a 5-17. The medical records during this time are inconsistent, so it is unclear if these were his only mental health encounters. If so, it appears that the applicant had only just started treatment when he was recommended for a 5-17. f. His supporting documents and service records also contained relevant medical information. His enlistment Report of Medical History, dated 14 January 2000, shows that he did not have any psychiatric concerns, and was found qualified for enlistment with a physical profile rating of “1” in all factors. On his Report of Medical Assessment, completed 22 August 2005, he noted being on Ambien and Zoloft, being diagnosed with PTSD and he noted intending to seek VA disability. The doctor’s notes on the assessment list diagnosis of PTSD, as well as treatment for PTSD. On 25 August 2005 he was seen for his separation medical examination. His Report of Medical Examination and Report of Medical History note psychiatric concerns. His profile is unreadable, though it looks like a P is written under physical profile of S (for psychiatric) indicating a potentially permanent profile, although this is not noted anywhere else in his medical record. The applicant endorsed having a head injury (concussions in 1998, 1999, 2000), a period of unconsciousness, frequent trouble sleeping (PTSD and nightmares, counseling ongoing), received counseling, and been evaluated or treatment for mental health condition. g. The applicant was seen for a separation mental status exam (MSE) on 22 August 2005. His presentation was unremarkable. The applicant was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible, reportedly met medical retention requirements per AR 40-501 chapter 3 and was cleared to participate in administrative proceedings deemed necessary by command. However, the applicant was diagnosed with PTSD and MDD – recurrent - moderate. It was the opinion of the examiner that the conditions/problems present would not be amenable to hospitalization, short term treatment, transfer, or reclassification to another duty type. They also stated the condition is interfering with the service member’s ability to perform their duty and that it is “so severe that the member’s ability to function effectively in the military environment is significantly impaired. It is the opinion of the examiner that the member has no potential to meet mobilization requirements and clearly has no potential for useful service under conditions of full mobilization.” The examiner then goes on to say the person should be discharged under chapter 5-17 of AR 635 – 200. This document and summary are conflicting, given that the examiner is stating both that the service member is fit for duty and not fit for duty. Based on the applicant’s medical history, it is clear that his symptoms were considered chronic, given the chronic PTSD and MDD – recurrent diagnosis. Per the applicant’s application and self-report, his symptoms were persistently or recurrently interfering with effective military performance. A memorandum for the VA, written by the chief of Adult Behavioral Health Services (CPT ) stated that applicant had been diagnosed with PTSD and MDD – recurrent – moderate, with significant impairment in his social, occupational, and interpersonal relationships, and had been prescribed Lexapro, prazosin, and Ambien to help control his symptoms, with minimal benefit as of 22 August 2005. Hence, there is some (though conflicting evidence) that he fell below fitness standards, per AR 40-501, chapter 3-32 and 3-33 (per 2005 standards). Also of note, there is no indication of recurrent or persistent symptoms requiring extended or recurrent hospitalization (3-32 and 3-33a) nor persistence or recurrent of symptoms necessitating limitations of duty or duty in protected environment (3-32 and 3-33b). Regardless, regulation at the time stated that if PTSD was a significant contributing factor to a mental health diagnosis, the Soldier would not be separated under a 5-17, but would be evaluated under the physical disability system in accordance with AR 635-40. h. The applicant’s service record and included NCOERs shows he was a high performing and highly regarded Soldier. He was described as being mentally tough and having unlimited potential. His NCOER covering the period of time that he was informed he would receive a chapter 5-17 shows he was rated as “Excellence” in all portions of PART IV. i. Per the applicant’s VA EHR and supplied VA ratings document, he is 90% service connected, to include 70% for PTSD. The applicant completed a VA Compensation and Pension Exam on 29 October 2005. Per the report he was diagnosed with service- connected PTSD, directly related to wartime experiences. His VA Rating Decision dated 21 December 2005 shows he was granted 50% for PTSD, with an effective date of 21 September 2005. His Rating Decision dated 18 June 2020 shows his connection was increased to 70% for PTSD. He began engaging in mental health care through the VA in 2015. He has been diagnosed with PTSD and MDD, as well as mood disorder due to known physiological condition – unspecified and problems related to living in residential institution. He has engaged in individual therapy, and also reported brief engagement with group therapy and marital therapy (through his church). Through review of JLV, this applicant did have “Community Health Summaries and Documents” available. His summary confirms that he’s been diagnosed with chronic PTSD and MDD. j. Conclusions: Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence to support the applicant had a boardable condition, or conditions, during his time in service. However, there is conflicting, though sufficient, evidence that the applicant warrants a referral to the DES. There are several considerations to this opine. k. First, the applicant has been service connected at 70% for PTSD. VA examinations are based on different standards and parameters; they do not address whether a medical condition met or failed Army retention criteria or if it was a ratable condition during the period of service. Therefore, a post-discharge VA disability rating does not imply failure to meet Army retention standards at the time of service, nor is it indicative of an injustice at the time of service. However, this applicant was diagnosed and briefly treated for PTSD and MDD while in the service, which are both potentially med boardable conditions. It is unclear if he was on a permanent profile (his separation profile is difficult to read but does not appear to list a 1, but instead a P). There is also conflicting information on whether or not he met medical retention standards. The examiner checked the box that he was fit for duty, but then went on to describe a service member who was not fit. It is possible that the examiner felt he was not yet falling below the standards listed in AR 40-501, chapter 3. However, it is clear that the applicant’s symptoms were severe, and though treatment seemed to have recently started, it was not yet working. The next step should have been to continue with treatment (to resolution) or deem him having met the medical readiness decision point and referred him for an MEB. These steps would have been in line with current policy and standards for a 5-14/5-17. l. Second, current AR 635-200 policy (2021) does not allow for those with a diagnosis of PTSD to be separated under a 5-17 (or now 5-14, “other designated physical or mental conditions”). Per AR 635-200, chapter 5-14 (d) soldiers will not be processed under this chapter if PTSD, TBI, and/or other co-morbid behavioral health conditions are significant contributing factors to the basis for separation. Instead, they are to be evaluated under DES in accordance with AR 635-40. Per the previous edition of AR 635-200 (2017), any previously documented diagnosis of PTSD, TBI, depressive disorder, or any other BH condition within the past 24 months that could warrant referral to the DES must be evaluated and documented as either not currently active (in remission) or currently active but meeting AR 40-501 retention standards. And, unless found fit by the DES a 5-17 would not be authorized. Per AR 635-200 from 2005, the year the applicant was discharged, a 5-17 could be used for mental health conditions not amounting to a disability. However, it was stated that “If PTSD, TBI, and/or other comorbid mental illness are significant contributing factors to a mental health diagnosis, the Soldier will not be processed for separation under this paragraph, but will be evaluated under the physical disability system in accordance with AR 635-40.” Hence, while the wording is different, it appears that a 5-17 for PTSD should not have been recommended without the applicant first being assessed by the physical disability system. m. In sum, it is the opinion of the Agency Behavioral Health Advisor that this applicant should be sent to the DES for evaluation. The applicant’s MSE on 22 August 2005 checked the box for having met medical retention standards but then summarized that his symptoms were found to be so “severe that [his] ability to function effectively in the military environment is significantly impaired” and he had “no potential for useful service.” He was diagnosed with both PTSD and MDD, two potentially boardable conditions. His medical records evidence that he had at least two trials of treatment (medications), his symptoms were not significantly improving, and it was impacting his functioning. While there is conflicting information of if he failed or met medical retention standards per AR 40-501, it appears that AR 635-200 policy required that if PTSD was a significantly contributing factor to the mental health diagnosis being consider, the applicant should be referred to the MEB process. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Not applicable (NA). (2) Did the condition exist or experience occur during military service? NA (3) Does the condition or experience actually excuse or mitigate the discharge? NA BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board through counsel carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review through counsel of the applicant’s petition, available military records and the medical review, the Board concurred with the advising official finding applicant should be sent to the DES for evaluation. The opine noted applicant’s MSE on 22 August 2005 checked the box for having met medical retention standards but then summarized that his symptoms were found to be so “severe that [his] ability to function effectively in the military environment is significantly impaired” and he had “no potential for useful service. The Board noted based on the opine there is sufficient evidence to support the applicant had a boardable condition, or conditions, during his time in service. 2. The Board determined DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. Based on the preponderance of evidence and the opine review, the Board granted relief for referral to DES. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by directing the applicant be entered into the Disability Evaluation System (DES) and a Medical Evaluation Board concerned to determine whether the applicant’s conditions(s), met medical retention standard at the time-of-service separation. a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned may be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB if requested by or agreed to by the PEB president. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the DES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to physical disability retirement with a disability rating of no less than 50 percent, in lieu of honorable discharge due to a physical condition, not a disability. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 3. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 (Discharge Review Board (DRB) Procedures and Standards) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (MOS) Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. c. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 5. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-17 states a service member may be separated for other designated physical or mental conditions that potentially interfere with assignment to or performance of duty, not amounting to disability under Army Regulation 635-40 and excluding conditions appropriate for separation processing under paragraphs 5-11 (Separation of personnel who did not meet procurement medical fitness standards) or 5-13 (Separation because of personality disorder) Such conditions may include, but are not limited to, the following: * chronic airsickness * chronic seasickness * enuresis * sleepwalking * dyslexia * severe nightmares * claustrophobia * other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired b. When a commander determines a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or a mental status evaluation in accordance with Army Regulation 40-501. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. c. Separation processing may not be initiated under this paragraph until the Soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. A Soldier being separated under this section will be awarded a character of service of honorable, under honorable conditions, or an entry-level separation. 7. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 8. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 9. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 10. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230006832 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1