ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 April 2021 DOCKET NUMBER: AR20200009706 APPLICANT REQUESTS: reconsideration of his prior request and consideration of his new requests for the following: .voiding of his withdrawal of Federal Recognition (FEDREC) in the Army National Guard of the United States and his separation from the Florida Army NationalGuard (FLARNG), the Army National Guard of the United States and the U.S.Army Reserve (USAR) .voiding his discharge under other than honorable conditions effective 7 October 2013 .issuance of an honorable discharge for his service in the FLARNG, the Army National Guard of the United States, and the USAR effective 16 February 2016 .a finding of unfitness for his post-traumatic stress disorder (PTSD) and spinecondition with a combined disability rating of 75 percent .permanent physical disability retirement in the rank/grade of major/O-4 with with over 30 years of services effective17 February 2016 .an administrative determination that his disability was combat-related under Title26, U.S. Code, section 104, was incurred in the line of duty (LOD) in a time ofwar or national emergency, and was incurred in a combat zone or incurred in theperformance of duty in combat-related operations .issuance of a corrected discharge documents reflecting these changes, includinga DD Form 214 (Certificate of Release or Discharge from Active Duty), NationalGuard Bureau (NGB) Form 22 (National Guard Report of Separation and Recordof Service), NGB Form 23A (Army National Guard Current Annual Statement) .reimbursement for the costs of health care, eye care, dental care, insurancepremiums, co-pays, deductibles and other expenses incurred that he wouldotherwise not have incurred had he been permanently retired for physicaldisability effective 17 February 2016 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record) .U.S. Court of Federal Claims Order, dated 29 October 2020 .U.S. Court of Federal Claims letter, dated 5 November 2020 .Counsel’s email correspondence, dated 7 November 2020 .Counsel’s brief, dated 9 November 2020 .Counsel’s appendix to Court Remand, with 256 pages of records and documents FACTS: 1.This case comes before the Army Board for Correction of Military Records (ABCMR)on a motion by the defendant, the United States, for voluntary remand back to theABCMR rather than answer or file a motion for judgment, filed in the U.S. Court ofFederal Claims on 24 August 2020 and issued by the Court on 29 October 2020. Theapplicant opposed the motion on the grounds that a decision on his entitlement todisability has already been rendered by the ABCMR, which has statutory authority to sitas a competent fitness board in lieu of a Physical Evaluation Board (PEB) convened atthe time of discharge, meaning the issues are ripe for disposition by the Court. Insupport of this motion, the Court states the following: a.Although sympathetic with the applicant’s frustration at having waited this long fora result from the ABCMR (it took nearly 4 years from when the Board conclude that a Medical Evaluation Board (MEB) was warranted), the Court nonetheless found that a remand was likely to save time and effort later. b.The Court took at face value the applicant’s representation that no PEB wasconvened as recommended by the MEB in 2019. The subsequent letter denying relief in February 2020, does not appear to have been the result of the ABCMR considering the merits of the applicant’s claim that he had a disabling condition at the time of discharge and the Court agrees with the applicant that the memorandum authored by the psychologist and doctor at Fort Benning was likewise not that of a PEB. That being the case, given the defendant’s recommendation that a fitness determination be made by a competent Board, the Court agrees that a remand is appropriate and likely to save time and resources. c.Accordingly, the defendant’s motion for remand is granted and the case isremanded to the Secretary of the Army with the instruction that the Secretary submit the matter to the ABCMR, where the ABCMR is directed to do the following: (1)determine and explain whether the applicant was unfit for duty because ofphysical disability at the time of his 31 July 2013 release from active duty in the Active Guard/Reserve (AGR) status; (2)address in its decision any other issues the applicant raises in a writtensubmission to the ABCMR that he submits within 30 days of the remand order and consider any evidence or arguments in his submission to the ABCMR; and (3)determine and explain whether the applicant is entitled to any relief, includingcorrection of records and retirement pay, based upon any errors or injustices found. 2.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the ABCMR in Docket NumberAR20150000176 on 21 June 2016. 3.In a 59-page brief dated 9 November 2020, which has been provided in full to theBoard for review, Counsel states in pertinent part the following: a.The applicant respectfully makes this submission to the ABCMR pursuant to anOrder dated 29 October 2020, entered by the U.S. Court of Federal Claims remanding his claim to the ABCMR. The applicant filed a complaint in the United States Court of Federal Claims after the ABCMR erroneously denied him relief on 5 February 2020, based on the mistaken belief that a PEB had determined the applicant did not suffer from unfitting post-traumatic stress disorder (PTSD). Rather than attempt to defend the ABCMR’s obviously incorrect determination, a senior trial attorney from the Department of Justice (DoJ) Civil Division moved the Court for a voluntary remand of the case to the ABCMR, to allow the Board a third opportunity to get the applicant’s relief right. DoJ counsel conceded that despite a MEB finding that the applicant “suffered from PTSD and back issues that did not meet medical retention standards” and a recommendation that “the applicant be referred to a PEB to determine whether he was unfit for duty … it is undisputed that neither a PEB nor the ABCMR has determined whether the applicant was fit or unfit for duty at the time of his release from active duty.” DoJ counsel further advised the Court: “Under these circumstances, it is in the interest of justice for a competent board, i.e., the ABCMR, to make a fitness determination…” The DoJ counsel admitted to the Court that “we have substantial and legitimate concerns regarding the decision to deny [the applicant] a medical retirement, in light of the MEB’s findings and the fact that no competent board has determined whether he was fit for duty at the time of his release from active duty.” b.This submission presents evidence and argument that: (1)the applicant’s release from active duty and his discharge from the FloridaArmy National Guard (FLARNG), the Army National Guard of the United States, and the U.S. Army Reserve (USAR) with a discharge under other than honorable conditions were illegal and void ab initio (from the beginning) due to the military’s multiple violations of the applicable National Guard and Army regulations; and (2)the applicant was unfit for duty at the time of his release from active duty andthereafter. This submission further seeks the relief necessary to return the applicant to the position he would have occupied but for his illegal release from active duty and separation from service, credit for the remaining period of his active duty orders, and longevity retirement based on at least 20 years of active Federal service. c.Relevant military records and other documents, to include medical records, areappended to this submission in an appendix and are incorporated by reference herein both in general and by specific citations throughout the submission. In connection with this submission, the applicant incorporates by reference his application to the ABCMR dated 21 December 2014, as well as any additional or supplemental materials the applicant provided to the ABCMR. The applicant expressly does not waive any of the issues he raised or arguments he advanced before the ABCMR prior to filing this submission. d.In addition, the applicant requests that this submission and the incorporatedAppendix be provided to any medical advisor or other individual or organization within or external to the Army Review Boards Agency (ARBA) from which the ABCMR may seek input or an advisory opinion during the remand period. This will ensure that the author of the advisory opinion considers all of the relevant evidence and arguments and is able to provide the ABCMR with a reasoned opinion that reflects a contemplation of the entirety of the facts and circumstances pertinent to the applicant’s case. A failure to disclose this submission to the author of an advisory opinion presents a substantial risk that the ABCMR will run afoul of its obligation to consider all of the competent evidence, whether original or supplemental, and whether or not it supports the actions or conclusions challenged by the applicant. e.In its decision dated 21 June 2016, the ABCMR found that the FLARNGimproperly removed the applicant, then a major, from active duty status and administratively separated him from the FLARNG, the Army National Guard of the United States, and the USAR. The ABCMR decision in that regard was consistent with a report issued by the FLARNG Office of the Inspector General (IG) in 2014, that also concluded the applicant’s release from active duty in full time Active/Guard (AGR) status and his separation from service violated multiple provisions of applicable ARNG and Army regulations. However, despite the compelling evidence that the applicant’s release from active duty and separation from service with an under other than honorable conditions discharge were both illegal and void ab initio, the ABCMR opted to grant the applicant only partial relief. The ABCMR suspended the applicant’s separation from service and placed him on excess leave effective 1 August 2013, pending his referral to and disposition through the Department of Defense (DoD) Integrated Disability Evaluation System (IDES), to determine if the combat-related PTSD with which he had been diagnosed prior to his release from active duty and separation warranted his separation or retirement by reason of physical disability. f.Before the applicant was referred to the IDES, the ABCMR blundered by closinghis case on 21 December 2017, based on the fallacious belief that a PEB at Fort Benning, GA had determined the applicant’s PTSD was not unfitting and that his PTSD was not in line of duty. Despite the ABCMR’s inexplicable gaffe, the applicant’s case continued its glacial pace through the Army and ARNG bureaucracy as if the ABCMR decision dated 21 June 2016, remained in full force and effect. In September 2019, an MEB at Fort Gordon, GA, found that the applicant’s PTSD and back condition did not meet medical retention standards and referred him to a PEB at Fort Sam Houston, TX. By 27 September 2019, an informal PEB made a preliminary determination that the applicant’s PTSD and back condition were unfitting and requested a Department of Veterans Affairs (VA) rating for each consistent with IDES requirements, but the PEB never took final action. Apparently triggered by the importuning of the senior MEB physician at Fort Gordon, GA, it suddenly dawned on the ABCMR that the applicant’s case had been closed two years earlier in 2017. As a result, the ABCMR issued its decision dated 5 February 2020. The decision effectively brushed aside the applicant’s referral to the IDES, his VA Compensation and Pension (C&P) examination, and other medical examinations, and his processing by a MEB and referral to the PEB – not to mention the applicant’s reasonable expectations that relief to correct his obviously illegal release from active duty and separation from service was forthcoming – because despite all that activity, the ABCMR summarily pronounced that there was no error or injustice associated with the adverse separation actions taken against him in 2013. Now the U.S. Court of Federal Claims, at the urging of the DoJ, has remanded the case to the ABCMR to give it yet another opportunity to remedy the errors and injustice that to date have characterized the applicant’s case. g.This remand submission presents evidence and argument regarding threeprincipal issues: (1)The applicant’s release from active duty in full time, title 32 AGR status,effective 31 July 2013 was illegal and void ab initio because the FLARNG failed to comply with the applicable ARNG and Army regulations that required he be kept on active duty pending completion of a line of duty determination and disposition by medical authorities of his combat-related PTSD. (2)The applicant’s separation from the FLARNG, the Army National Guard of theUnited States, and the USAR effective 7 October 2013, with a characterization of service of under other than honorable conditions, approved by the Adjutant General of the FLARNG, was illegal and void ab initio because the FLARNG failed to comply with the applicable ARNG and Army regulations that required the applicant’s administrative elimination action be processed simultaneously with a proceeding under the IDES, that both actions be reviewed together by the Commander, U.S. Army Human Resources Command (AHRC) with final approval action to be taken by the Secretary of the Army or the Secretary’s designee, and that the approval authority for the applicant’s characterization of discharge was the Commander, U.S. Army Human Resources Command (AHRC). (3)At the time of his illegal release from active duty on 31 July 2013, and hisillegal separation from service effective 7 October 2013, and continuously thereafter, the applicant was unfit for duty because of physical disability as he suffered from unfitting PTSD and an unfitting back condition. h.In light of the applicant’s illegal release from active duty effective 31 July 2013,and his illegal discharge from the FLARNG, the Army National Guard of the United States, and the USAR effective 7 October 2013, he is entitled to relief that will return him to the position he would have occupied but for those illegal actions. That relief necessarily includes retroactive credit, to include all pay and allowances, for the period he would have remained on active duty pending disposition of his medical condition, completion of a line of duty (LOD) determination including appeals, and processing through the IDES including an MEB, PEB, and post-PEB appeals and administration. To that end, the relief must include the correction of the applicant’s military records to reflect that he served the entire period of his full time AGR status from 24 December 2010 to 23 June 2016, as contemplated by his AGR orders before his illegal release from active duty, and crediting him with at least 20 years of active Federal service effective 23 June 2016, such that the applicant was eligible for and was retired for longevity from active service pursuant to Title 10, U.S. Code (U.S.C.) section 7311 or any such similar provision effective 24 June 2016, with an honorable discharge, with retroactive payment to the applicant of all active duty pay and allowances and retroactive and prospective payment of retired pay, and reimbursement of the costs of health care, eye care and dental care, including but not limited to insurance premiums, co-pays, deductibles or other expenses and costs, incurred by the applicant for himself and his dependents that he otherwise would not have been obligated to incur or pay had he not been illegally removed from active duty. i.The partial relief initially ordered by the ABCMR in its decision dated 21 June2016, ordering the applicant’s disposition through the IDES with the potential for a retroactive disability retirement effective 1 August 2013, failed to return the applicant to the position he would have occupied but for the illegal actions taken against him, because it failed to recognize that the applicant would have remained on active duty for some period of time after 31 July 2013, pending referral to and disposition by the IDES. If the ABCMR again opts to grant such relief or otherwise determines that the applicant was unfit and eligible for disability retirement, despite the more appropriate relief discussed above, then the relief should reflect at least 930 days of active duty credit from 31 July 2013, including retroactive pay and allowances, which is the time period the DoD contemplates for medical disposition and processing of a member of the Reserve Component through the IDES. j.To the extent that the ABCMR determines that the appropriate relief for theapplicant is retirement by reason of physical disability, that relief should include credit for active duty service between 1 August 2013 and 16 February 2016, together with the retroactive payment of all active duty pay and allowances, with placement on the permanent disability retired list effective 17 February 2016, with a disability rating of 75 percent, with the payment of disability retired pay retroactive to and effective as of that date and on a prospective basis in the monthly amount required by law for an individual in the rank/grade of major/O-4 with over 30 years of service for pay. In addition, the ABCMR should order the correction of the applicant’s military records to reflect the following relief: (1)voiding of the withdrawal from the applicant of Federal recognition in theArmy National Guard of the United States and his separation from the FLARNG, the Army National Guard of the United States and the USAR and his discharge under other than honorable conditions effective as of 7 October 2013; (2)issuance of an Honorable Discharge Certificate for the applicant’s service inthe FLARNG, the Army National Guard of the United States, and the USAR ending effective 16 February 2016; (3)issuance of a DA Form 199 (PEB Proceedings), or other orders reflecting theplacement of the applicant on the Army permanent disability retired list (PDRL) in the rank/grade of major/O-4 with more than 30 years of service for pay purposes, effective as of 17 February 2016, with a total disability rating of 75 percent for his unfitting PTSD and spine condition and with an administrative determination that his disability was combat-related under Tile 26 U.S.C., section 104, was incurred in the LOD in time of war or national emergency or after 14 September 1978, and was incurred in a combat zone or incurred in the performance of duty in combat-related operations as designated by the Secretary of Defense; (4)issuance of a corrected DD Form 214 (Certificate of Release or Dischargefrom Active Duty), National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service), NGB Form 23A (Army National Guard Current Annual Statement), and any other document necessary and proper to reflect the foregoing corrections of the applicant’s military records; and (5)reimbursement of the costs of health care, eye care and dental care,including but not limited to insurance premiums, co- pays, deductibles or other expenses and costs, incurred by the applicant for himself and his dependents that he otherwise would not have been obligated to incur or pay had he been placed on the Army permanent disability retired list with a disability rating of 75 percent effective as of 17 February 2016. k.The FLARNG illegally released the applicant from full time, title 32 AGR activeduty status and illegally separated him from service with bad paper despite his diagnosis of combat-related PTSD. The FLARNG’s actions flagrantly violated a variety of Army and National Guard regulations and unlawfully precluded the applicant from being properly dispositioned for medical treatment prior to and through the IDES process while remaining on active duty and from properly being retired either for longevity or by reason of physical disability. The ABCMR exacerbated the error and injustice inflicted upon the applicant by granting partial relief in June 2016, and then nearly 4 years later in February 2020, yanking the rug out from underneath him when he was just 1 month or 2 away from obtaining a disability retirement from a properly convened PEB, based on a plainly erroneous determination that a PEB at Fort Benning –which the DoJ concedes never existed – had found the applicant fit some 2 yearsearlier. The applicant respectfully urges the ABCMR to put an end to the egregiousadministrative meandering and bungling and pervasive errors that have plagued himsince April 2013, and grant him the full relief he deserves to remedy the errors andmaterial injustice so readily apparent from even the most cursory review of his case. l.The relief must include the correction of the applicant’s military records toreflect that he served the entire period of his full time AGR status from 24 December 2010 to 23 June 2016, that he was credited with at least 20 years of active Federal service effective 23 June 2016, and that he was retired from active service for longevity pursuant to 10 U.S.C. section 7311 or any such similar provision effective 24 June 2016, with an honorable discharge, and the retroactive payment to the applicant of all active duty pay and allowances and retroactive and prospective retired pay, and reimbursement of the costs of health care, eye care and dental care, including but not limited to insurance premiums, co-pays, deductibles or other expenses and costs, incurred by the applicant for himself and his dependents that he otherwise would not have been obligated to incur or pay had he not been illegally removed from active duty. 4.The applicant had prior honorable enlisted service in the ARNG of the United States(ARNGUS) and the Mississippi ARNG (MSARNG) from 27 November 1985 through 7 August 1992. 5.He was appointed as a Reserve officer of the Army (Infantry) in the ARNGUS andthe MSARNG, in the rank of second lieutenant, on 8 August 1992. He transferred to theFLARNG on 31 August 1993. He entered the AGR program on 4 November 1998 andremained in that status through 15 January 2003, when he was honorably released fromactive duty after 4 years, 2 months, and 12 days of net active service this period andordered to active duty in another status. 6.The applicant was ordered to active duty in support of Operation Noble Eagle andEnduring Freedom with service in Jordan from 11 March 2003 through 8 May 2003. He remained on active duty in support of Operation Iraqi Freedom with service in Iraq from 9 May 2003 to 5 March 2004. 7.The applicant was honorably released from active duty on 12 March 2004, after 1 years, 1 month, and 27 days of net active service this period and returned to his AGRstatus on 13 March 2004. 8.On 25 January 2005, the applicant was promoted to the rank/grade of major/O-4. 9.A State of Florida, Office of the Adjutant General memorandum, dated 2 December2005, shows the applicant was notified his eligibility for retired pay had been establishedupon attaining age 60. 10.On 1 January 2010, the applicant was honorably released from active duty after 5 years, 9 months, and 19 days of net active service this period for the purpose of beingordered to active duty in another status. 11.On 2 January 2010, the applicant was ordered to active duty with service in Kuwaitfrom 6 March 2010 thorough 13 December 2010. He was honorably released fromactive duty after 11 months and 22 days of net active service this period on 23 December 2012, due to the completion of required active service. 12.FLARNG, Office of the Adjutant General Orders P355-031, dated 21 December2010, ordered the applicant to full-time National guard duty in an AGR status effective24 December 2010 with an active duty commitment of 5 years and 6 months (through23 June 2016). The additional instructions show the applicant would be in a Federalstatus during this period and would be subject to the Uniform Code of Military Justice. 13.On 24 December 2010, the applicant returned to his AGR status. 14.A DA Form 67-9 (Officer Evaluation Report) for the period 2 January 2012 through 2 December 2012 shows the rater indicated that the applicant possessed the ArmyValues and Leader Attributes/Skills/Actions and he assessed his performance andpotential for promotion as "Outstanding Performance, Must Promote." The senior raterevaluated his promotion potential to the next higher grade as "Best Qualified" and ratedhis potential compared with officers senior rated in the same grade as "Center of Mass." 15.A Baptist Hospital Discharge Summary Report, dated 29 April 2013 shows thefollowing: a.On Friday, 5 April 2013, the applicant was arrested for child pornography. Hewas released on bond and had an upcoming court date on 10 August 2013. The following Monday, on 8 April 2013, the applicant reports ingesting a whole bottle of Tylenol and nothing happened. He then went into the garage and cut himself with several knives, making numerous self-inflicted lacerations to both wrists, causing him to lose a large amount of blood and become unconscious. His 9-year old son found him in the garage and got his wife. b.The applicant was taken by ambulance to the x Center on 8 April 2013 after his self-inflicted lacerations and had surgery done on both hands for reattachment of tendons and was transferred to the Baptist Hospital Behavior Medicine for continuation of treatment and medication management on 14 April 2013. He has no history of prior psychiatric treatment or hospitalizations. c.The applicant was discharged on 29 April 2013. His discharge diagnoses weredepressive disorder, not otherwise specified; adjustment disorder with mood and conduct changes; history of PTSD; primary support group issues; legal issues; work-related issues; and marriage issues. His Global Assessment of Functioning (GAF) was 80.At the time of his discharge, the applicant denied any suicidal or homicidalideations, intent, or plan. He benefited from psychotherapeutic andpsychopharmacological intervention. His prognosis was fair. Psychiatric follow-up wasset in place as he responded to treatment positively and regained insight working withthe therapist to improve his frustration tolerance, insight and judgment. 16.An Emerald Coast Behavioral Health Hospital Psychiatric Outpatient Admit Report, by Dr. B_____, dated 30 April 2013, shows:a.The applicant’s past psychiatric history shows he was never really treated before;he resisted going, believing he did not have any problems that mental health could help. His past medical history was significant only for his bilateral wrist cuts that were currently healing, as well as a history of six hernia surgeries dating from when he was an infant up until the age of 45. b.The diagnostic impressions show AXIS I: PTSD; adjustment disorder withdepressed mood; AXIS II: no diagnosis; AXIS III: recovering from Tylenol overdose; bilateral wrist cutting, currently healing; AXIS IV: stress of his job; stress of deployments; AXIX V: GAF current 48; highest past year probably 50. c.The plan was for the applicant’s enrollment in intensive outpatient programMonday through Friday from 9 – 12 and individual therapy once per week, continue Zoloft 50 milligrams (mg) every morning for depressed mood, continue Trazodone 50 mg at bedtime as needed for sleep, follow-up as needed or at least weekly. He was currently psychiatrically stable with no evidence of imminent harm to self or others 17.A FLARNG memorandum, dated 10 May 2013, shows the applicant was arrestedfor child pornography on 5 April 2013 and admitted to knowing possession of child pornography on his personal computer. Based on this misconduct, his battalion commander recommended that a request for withdrawal of federal recognition (FEDREC) be forwarded to First Army for action. 18.On 15 May 2013, the applicant requested to be released from his AGR Title 32 toureffective 31 July 2013 and to remain a traditional drilling member of the ARNG. In hisrequest, he states: a.He was currently under treatment for PTSD as well as physical and occupationaltherapy for his wrists. His PTSD treatment was intensive outpatient therapy focusing on cognitive behavioral therapy from 0830 to 1200 daily. He was advised by his therapist he should pursue cognitive processing therapy which was a 3-month outpatient process. Treatment for PTSD would be required beyond his release from active duty if his release is prior to his medical clearance. b.He was concerned that his request could delay his continued treatmenttransitioning to the VA. He requested copies of all medical records to support his claim and his current treatment was ongoing, thus no final documentation would be available until his treatment was complete and he would provide them once the documentation was provided to him. 19.A legal review of the request for withdrawal of the applicant’s FEDREC, completedby the FLARNG State Staff Judge Advocate on 17 May 2013, shows: a.The request for withdrawal of the applicant’s FEDREC based upon moral orprofessional dereliction is legally sufficient for processing through The Adjutant General to 1st Army for initiation of separation action. b.As part of an investigation conducted by the Bay County Sheriff’s Office CrimesAgainst Children section, the investigator identified a personal computer, later found to belong to the applicant, and seized from his address of record. Numerous files were obtained in January and one file in February 2013 depicting graphic child pornography/sexual acts that were shared by the applicant with the investigator using the computer capability called “peer to peer sharing. c.The actual pornographic images/video clips are not included with the request forwithdrawal of FEDREC; however, the files have been reviewed by the investigator and have resulted in the applicant’s arrest and charges of possession of child sexual performances being filed. The search warrant affidavit also describes the contents of the files. The file names alone provide compelling evidence that the applicant knowingly obtained/shared child pornography. d. Following his arrest, the applicant called his subordinate, Captain (CPT) S____ and discussed his arrest and of his own volition admitted to CPT S____ that on two occasions he knowingly downloaded child pornography. Subsequently, on 18 April 2013, the applicant admitted to CPT S____ that he was addicted to pornographic materials. The available evidence is sufficient to support initiation of withdrawal of FEDREC based upon moral and professional dereliction. 20.An Emerald Coast Behavioral Health Hospital Psychiatric Outpatient Progress Report, by Dr. B____, dated 24 May 2013, shows:a.The applicant’s chief complaint was his inability to take Prazosin for hisnightmares because it made his hallucinations worse. He was currently being followed for PTSD as well as adjustment disorder that stemmed from a deployment as far back as 2004 when he went to Iraq. He was very withdrawn from his family and continued trying to improve his feelings with them after a recent significant suicide attempt. b.He continued to respond appropriately to the group treatment and medicationssomewhat. He was starting to open up more in the group, although it is very stressful and he was still concerned about his future, which was understandable. c.The diagnostic impressions show AXIS I: PTSD; adjustment disorder withdepressed mood (secondary to his legal problems); AXIS II: no diagnosis; AXIS III: continuing to recover from his bilateral wrist cutting; AXIS IV: chronic PTSD from deployments; job stress; legal problems; AXIS V: GAF at 55. 21.FLARNG, Office of the Adjutant General Orders 149-001, dated 30 May 2013,honorably released the applicant from active duty in an AGR status, effective 31 July 2013, and returned him to Headquarters and Headquarters Troop, 1stSquadron, 153rd Cavalry, x, per the authority of National GuardRegulation 600-5, (The Active Guard Reserve (AGR) Program Title 31, Full TimeNational Guard Duty (FTNGD) Management), Chapter 6 (Separation), and VerbalOrders of the AG, FLARNG. 22.FLARNG, Office of the Adjutant General Orders 149-002, dated 30 May 2013,amended FLARNG, Office of the Adjutant General Orders P355-031, dated 21 December 2010, by changing the applicant's active duty commitment to 2 years, 7 months, and 8 days (24 December 2010 through 31 July 2013). 23.A Headquarters, First Army memorandum, dated 10 June 2013, informed theapplicant that a sufficient basis exists to initiate action for the withdrawal of his FEDRECin the ARNG for moral or professional dereliction in accordance with National GuardRegulation 635-101 (Termination of Appointment and Withdrawal of FederalRecognition) 24.On 5 July 2013, the applicant, having been informed that proceedings were initiatedto withdraw his FEDREC, voluntarily tendered his resignation as an officer of theFLARNG and as a Reserve Officer of the Army under the provisions of Section V,National Guard Regulation 635-101. He acknowledged having been advised of thereasons for the initiation of action to withdraw his FEDREC, of his rights to appearbefore a board of officer, be represented by counsel, to submit a brief on his behalf,present witness in his behalf and have a reasonable time to prepare his case. Hewaived these rights with the understanding that if his resignation were accepted, he maybe separated either under honorable conditions or under conditions less thanhonorable. 25.An Election of Options Form, dated 5 July 2013, shows: a.The applicant indicated he elected to tender his resignation as an officer of theARNG and as a Reserve Officer of the Army in lieu of proceedings for withdrawal of FEDREC, under the provisions of Section V, National Guard Regulation 635-101. Next to this numbered option are the applicant’s handwritten initials and the handwritten word “Yes.” b.He further indicated that he elected transfer to the Retired Service, if eligible bymarking an “X” next to this option. Next to the “X” are the applicant’s handwritten initials and the handwritten word “No.” 26.On 9 July 2013, the First Army, Deputy Chief of Staff, G-1, recommended acceptance of the applicant’s resignation in lieu of board proceedings to withdraw his FEDREC and the issuance of separation orders.27.On 16 July 2013, Major General T____, FLARNG, The Adjutant General, accepted the applicant’s request for resignation as an officer of the ARNG and as a Reserve of the Army in lieu of proceedings for withdrawal of FEDREC and determined that the characterization of his service would be under other than honorable conditions.28.A Standard Form 600 (Chronological Record of Medical Care), dated 30 July 2013, shows:a.The applicant was seen on the date of the form at the Neurology Clinic of the 96thMedical Group as an outpatient for TBI evaluation. The history of his present illness as provided by the applicant shows he had a past medical history of PTSD and involvement in IED blasts who was being seen for anew patient visit with a chief complaint of headaches. In 2003 he was a driver in a vehicle with no armor in Iraq and was on his way to help persons involved in an IED blast when an IED went off in the rear of the vehicle. He recalled having loss of consciousness for 1 minute or less and when awakened he jumped out of the vehicle to potentially return fire. b.The applicant recounted he could not hear, had loud tinnitus begin at that timewhich has never gone away and he favors the right ear due to hearing loss. He was found to be talking incoherently at that the time and clear liquid was noted to come out of his left ear. He had immediate headaches as well that improved, but then subsequently worsened. He also had rocket propelled grenades (RPGs) and mortar round land near him with resultant concussion symptoms. He felt dazed with intense headaches and nausea immediately. The applicant noted headaches involving light and sound sensitivity and dizziness that lasts for hours to 1 day. He also notes problems sleeping with recurring nightmares and problems with short term memory, difficulty focusing, and mood instability. c.The neurologic exam shows his attention span was abnormal, recent memoryintact, and remote memory not intact. He had a normal brain MRI, but had a 1 centimeter mucous retention cyst in the roof of the sphenoid sinus. The assessment and plan shows the applicant had a personal history of TBI, global war on terrorism (GWOT) related, with the highest level of severity being mild (Glasgow Coma Scale 13-15). His symptoms were multifactorial due to mTBI, PTSD, depression and sleep problems. For his mTBI-related cognitive impairment he as to start 18 mg Concerta to help improve his concentration. He was also assessed as having common migraine without aura and no medication was needed. 29.On 31 July 2013, the applicant was honorably released from active duty in an AGR status and transferred to a FLARNG unit after completed 2 years, 7 months, and 7 days of net active service this period, due to the completion of required active duty.30.A VA Initial PTSD Disability Benefits Questionnaire (DBQ) signed by a psychologist, Dr. O____ Ph.D and dated 8 August 2013, shows:a.The applicant was diagnosed with PTSD and major depressive disorder and didnot have a diagnosis of TBI. The applicant has been very depressed and suffering from PTSD according to various civilian documents dating from 30 April 2013 to 5 June 2013 and has been diagnosed with chronic PTSD, depression, and adjustment disorders. b.It was determined the applicant had occupational and social impairment withoccasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. It was not possible to differentiate what portion of his occupational and social impairment was attributable to each diagnosis because both affect him equally. c.Among the applicant’s sentinel events (other than stressors) he stated an IEDblast in July 2003 detonated to the left side of his vehicle, a sniper round was 5 inches from his head, and an RPG round just missed his head. He was exposed to multiple mortar rounds which came within close to extremely close proximity to him. He was ambushed multiple times by small arms and found multiple IEDs over the course of the years, which he stepped on. d.The applicant had service during the Iraq war and reports he participated incombat activity. His multiple Axis I diagnoses are related and the secondary diagnosis is a progression of the primary diagnosis because the depression is a subsequent reaction to, in part, PTSD experiences. Based upon the examination, the applicant needs to seek follow-up treatment and requires outpatient therapy. 31.The applicant’s NGB Form 22 (Report of Separation and Record of Service), showsthe applicant was discharged from the FLARNG on 7 October 2013 under other thanhonorable conditions due to resignation, conditional, in lieu of elimination. He wascredited with 10 years, 1 month, and 7 days of net service this period and a total of 27 years, 10 months, and 11 days of total service for retired pay. 32.FLARNG, Office of the Adjutant General Orders 281-096, dated 8 October 2013,separated the applicant from the FLARNG and as a Reserve officer of the Army,effective 7 October 2013, with an under other than honorable conditions discharge,based on his conditional resignation in lieu of elimination per the authority of NationalGuard Regulation 635-100, paragraph 5a (25). 33.A review of the AHRC, Soldier Management System (SMS) confirms a transaction was completed to discharge the applicant from Army National Guard of the UnitedStates (current organization “A”) due to resignation in lieu of elimination and to archivehis record (current organization “Y”) effective 7 October 2013. 34.An ARNG Current Annual Statement of Retirement Points, dated 5 November2013, shows the applicant's service from 27 November 1985 through 7 October 2013.He earned 6,954 total points for retired pay and had 27 years, 10 months, and 11 daysof creditable service for retired pay. It also shows he served continuously in the ARNG: .as a member of the AGR program (including in a mobilized status) from 4 November 1998 through 31 July 2013 .as a Troop Program Unit member from 1 August 2013 through 7 October 2013 35.NGB Special Orders Number 321 AR, dated 3 December 2013, announcedwithdrawal of the applicant's FEDREC status in the ARNG, effective 7 October 2013. 36.A FLARNG Office of the Inspector General (IG) letter dated 4 November 2014,responded to the applicant’s IG Action Request (IGAR) of 13 February 2014, requestingassistance in having his FEDREC as an officer in the FLARNG and in the Reserve ofthe U.S. Army restored, being reappointed to AGR status in the FLARNG, and beingafforded all processes and procures due to him. It states they conducted a thoroughinquiry into the issues attendant to his request and determined that the following issueswere founded: a.The FLARNG failed to comply with the provisions of Army Regulation 600-8-4(LOD Policy, Procedures, and Investigations), which mandates that a formal LOD investigation be conducted in cases of self-inflicted injuries or possible suicide. b.The FLARNG failed to comply with the provisions of Army Regulation 40-501(Standards of Medical Fitness), in that at no time subseque4nt to 8 April 2013, while he was undergoing medical and mental/behavioral health treatment, was he properly medically profiled. c.The FLARNG failed to comply with the provisions of Army Regulation 635-40(Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-4. This regulation states, “A commissioned officer will not be referred for disability processing instead of elimination action that could result in separation under other than honorable conditions. Officers in this category who are believed to be unfit because of physical disability will be processed simultaneously for administrative separation and physical disability evaluation.” This regulation also states, “Commanders exercising general court-martial authority will ensure that the foregoing actions processed together are properly identified and cross-referenced. The administrative separation will be forwarded to the Commander, AHRC…the commander AHRC will refer the entire file, including both courses of action to the Office of the Secretary of the Army…the Secretary of the Army will decide the proper disposition of the case.” The withdrawal of FEDREC action taken against him was improperly processed in accordance with National Guard Regulation 635-101 (Efficiency and Physical Fitness Boards). d.The FLARNG failed to take into account the provisions of National GuardRegulation 600-5 (The AGR Program, Title 32, Full-Time National Guard Duty (FTNGD), paragraph 6-2, when processing his request for voluntary removal from the AGR program. Removal from AGR status should not have been processed until a formal LOD investigation was completed and final disposition by medical authorities had been rendered regarding his medical and mental/behavioral health issues. e.The applicant was advised he could file a Freedom of Information Act (FOIA)request for a copy of the Report of Assistance Inquiry and that the IG office could not direct action to restore him to active status, overturn the withdrawal of FEDREC, or restore him to AGR duty and that he must petition the ABCMR to address those issues. 37.On 21 December 2014, the applicant applied to the ABCMR requesting the following:•correction of his military records by voiding the administrative separation process that resulted in his discharge under other than honorable conditions•reinstatement as a member of the AGR program•extension of FEDREC with all active duty back pay and allowances•processing through the Integrated Disability Evaluation System (IDES)•honorable retirement from the ARNG, either administratively or based on permanent disability due to his unfitting medical conditions of PTSD and mild-traumatic brain injury (mTBI)38.A letter from H____, PhD, Staff Psychologist, VA Gulf Coast Veterans Health Care System, x Outpatient Clinic, dated 17 September 2015, shows:a.This statement was written on behalf of the applicant as part of his requestingregarding the correction of his military discharge. Since, August 2013, the applicant has been followed by the x Outpatient Clinic within the Gulf Coast Veterans Health Care system for PTSD as well as a secondary depressive disorder. b.Within his VA medical records, the applicant has been diagnosed with PTSD byeight licensed mental health professionals, his treating psychiatrist, an outpatient psychiatric nurse practitioner, an inpatient psychiatric nurse practitioner, two inpatient psychologists, as well as two outpatient psychologists. None of his providers are offering an excuse for his past legal issues, but impulsive and risky behavior is all too common with veterans diagnosed with PTSD. The causal relationship between his current symptomology and his military experience has always been presumed to be “more likely than not.” 39.A letter from Dr. B____, Outpatient Services, Emerald Coast Behavioral Hospital, dated 28 October 2015, states when he was evaluating the applicant from April to May 2015, the applicant was advised by his lawyer not to discuss details of his legal charges. Dr. B_____, did however, make the diagnosis of PTSD based on the applicant’s combat time and related symptoms. This is related to time in Iraq and it had nothing to do with his legal proceedings.40.On 21 June 2016, 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 and Army National Guard records of the individual concerned be corrected by:a.directing the AHRC, Fort Knox, KY, NGB, and/or FLARNG to: (1)suspend his resignation as a Reserve officer of the Army, withdrawal ofFederal recognition, discharge from the Army National Guard of the United States, and discharge from the FLARNG and place him in an excess leave status effective 1 August 2013 for an indefinite period pending: (a)review of his voluntary resignation in lieu of elimination for compliancewith the governing Army regulatory guidance (e.g., processing, procedures, and approval authority) and (b)his processing through the IDES. (2)complete a formal LOD investigation based on the incident that occurred on8 April 2013; and (3)determine his eligibility for non-regular retirement based on qualifying yearsof creditable service. b.affording him processing through the IDES to determine if he should have beendischarged or retired by reason of physical disability. IDES processing should consider all available medical records related to the applicant's medical history, including the proceedings of any Medical Evaluation Boards, Physical Evaluation Boards, Army Board for Correction of Military Records of Proceedings (along with all advisory opinions), and medical records/documents provided by the applicant. (1)In the event that a formal PEB becomes necessary, the individual concernedwill be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. (2)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 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. (3)Notify the ABCMR of the results of the IDES process. c.In the event the applicant is to be placed on the permanent retired list based onpermanent disability or qualifying creditable service, the Army Review Boards Agency, U.S. Army Grade Determination Review Board, will review the applicant's military service records for a determination of his retired grade of rank (the effective date of any such retirement to be retroactive to 1 August 2013). d.In the event the applicant is not found medically unfit for further military serviceand he is not authorized non-disability retirement (transfer to the USAR Control Group, Retired Reserve), the AHRC, Fort Knox, KY, and the NGB in concert with the FLARNG will initiate appropriate action to effect his separation and discharge. 41.The Board further determined the evidence presented was insufficient to warrant a portion of the requested relief. As a result, the Board recommended denial of so much of the application that pertains to reinstatement as a Reserve officer of the Army and extension of FECREC in the Army National Guard of the United States, ActiveGuard/Reserve program, and the FLARNG; active duty back pay; and permanent retirement and back pay (i.e., pending results of the actions directed by the Board above).42.A U.S. Army Medical Department Activity Memorandum, dated 9 March 2017, and signed by MEB Psychologist Ph.D., O____ and Senior MEB Physician, Dr. H____, states:a.The ABCMR is asking for a determination to be made regarding whether theapplicant should have been discharged or retired by reason of a mental health disability, or more specifically, due to PTSD, major depressive disorder, recurrent, moderate (MDDRM), and/or TBI. Significant dates/sequence of events are as follows: .deployed to Iraq from 1 March 2003 to 31 March 2004 .deployed to Pakistan from 1 March 2008 to 30 April 2008 .deployed to Kuwait from 1 March 2010 to 31 December 2010 .arrested for downloading child pornography/possessing associated file sharingprogram on 5 April 2013 .attempted suicide 4 days later on 8 April 2013 .admitted to Baptist Health Center from 14 April 2013 to 29 April 2013 .elected to resign on 10 June 2013, requesting delay in administrative dischargein order to remain on active duty to continue his medical treatment and go beforea Fitness for Duty Board on 30 July 2013 .separated from the AGR program on 31 July 2013 and discharged from theFLARNG under other than honorable conditions on 7 October 2013 b.With regard to whether or not the applicant should have been discharged orretired by reason of a mental health disability, or more specifically due to PTSD and/or MDDRM, the answer is no. The applicant likely did have a diagnosis of PTSD and MDDRM prior to his discharge (based upon a review of his treatment records), but merely having a diagnosis of these conditions in and of itself does not automatically warrant a referral to the MEB or that it should inevitably be assumed to fail retention standards. There must be a clear demonstration that these conditions caused an occupational functional impairment, and in the applicant’s case, he remained completely functional until the point where he was arrested for possession of child pornography. He was up until that point able to perform his duties, successfully deployed three times, and received positive OERs, awards, and/or promotions. c.More than likely what the applicant was displaying was a normal emotionalreaction following the above-cited incident of his arrest. A review of his Armed Forces Health Longitudinal Technology Application (AHLTA) shows a note on 29 April 2013 that he was “arrested and is facing legal charges; this stress led to his suicide attempt by cutting his wrists,” and a note from 10 May 2013 stating “anxiety due to legal issues.” This shows a direct correlation between his legal problems and his mental health state; not his PTSD or MDDRM causing him to be this way. d.Regardless of whether or not the applicant was honest on his self-reported postdeployment assessments, and in further support of this aforementioned premise remains the fact that he had no documented issues prior to being arrested. If he did, he should have either self-referred himself for treatment or it would have been highly likely that those in charge of him would have command-referred him for the same had he actually been having problems. His issues did not emerge until after his arrest, leading one to believe that PTSD and MDDRM are not the underlying cause of his problems, but rather that his arrest was the underlying cause of his problems. e.Also of note is the fact that he appeared to respond positively to the treatmentthat he did receive up until the time he was discharged, effectively mitigating his emotional reactivity. Further AHLTA notes show the following: .3 May 2013 – doing well in intensive outpatient therapy .10 May 2013 – feels like groups are helping .17 May 2013 – doing well and continues to make progress .23 May 2013 – improved mood, more hopeful .7 June 2013 – doing well, would like to end intensive outpatient treatment nextweek and transition to outpatient treatment .11 July 2013 – doing well, progressing through cognitive processing therapy f.With regard to whether or not the applicant should have been discharged orretired by reason of a mental health disability, or more specifically due to a TBI, the answer to this question is also no. The applicant’s TBI-inducing event took place in 2003 and resulted in no occupational functional impairment (cognitively speaking). Said another way, it didn’t impair his ability to perform his duties, successfully deploy two additional times, or receive positive OERs, awards, or promotions. g.Additional information to consider is the fact that the applicant had a normalMagnetic Resonance Imaging (MRI) scan, was diagnosed with mild TBI (which denotes a nominal decline in abilities with retention of overall functionality), and had a non-clinical Montreal Cognitive Assessment score (a screening tool designed to detect cognitive impairment) reported as abnormal by a neurologist on 30 July 2013 with a score of 25 out of 30, with a score of less than 25 warranting further evaluation. h.In summary, the applicant should not have been discharged or retired by reasonof a mental health disability, or more specifically due to PTSD, MDDRM, and/or TBI. The applicant was having a normal reaction to a given situation. 43.A memorandum from the FLARNG Investigating Officer (IO), dated 30 May 2017,shows: a.After a thorough review of submitted medical records, the applicant’s letter to the ABCMR, ABCMR Record of Proceedings, Orders, and discharge certificates, the IO concluded the applicant to be “not in the line of duty (LOD) due to own misconduct” for PTSD and suicide attempt. b. A review of all documents does not substantiate the applicant’s assertion that his vehicle was hit by an IED and his subsequent unconsciousness on 26 August 2003. A review of all medical records, to include his periodic health assessments and post deployment health reassessments prior to his 8 April 2013 suicide attempt are silent for complaints of and a definitive diagnosis of PTSD and mTBI by a behavior health professional (psychologist or psychiatrist). c. During a 4-hour interview, the applicant provided a sworn statement from both Sergeant Major (SGM) (retired) S____ and Sergeant First Class (SFC) K____ alluding to acts of valor, but lacking in specifics, as evidence to the alleged 26 August 2003 IED incident. Both SGM (retired) S____ and SFC K____ affirmed that neither actually witnessed the applicant’s vehicle detonating an IED at any point during the deployment. The applicant stated that Command Sergeant Major (CSM) Y____ served as his first sergeant (1SG) during the same period and that CSM Y____ could verify the applicant had conducted extensive enemy engagements and personally responded to multiple IEDs. CSM Y____ provided contradictory statements to the applicant’s claim for extensive combat operations. No records exist pertaining to any IED incident personally involving the applicant’s vehicle or combat engagements with the enemy. d. Based on a review of all provided documentation along with the Mental Soundness memorandum from MAJ G____, dated 3 February 2017, the applicant’s self-inflicted injuries sustained from his 8 April 2013 suicide attempt are considered misconduct. Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations), Appendix B, Rule 10, states, “a wound or other injury deliberately self-inflicted by a Soldier who is mentally sound is not in the LOD. Since this attempt was 3 days after the applicant’s civil arrest, the IO concurred with MAJ G____ that there was “no objective evidence that the individual was suffering from any mental health condition at the time of the suicide attempt” but it was directly related to being “publicly shamed” and “feeling like his life was over.” 44.A letter from H____, PhD, Staff Psychologist, VA, Gulf Coast Veterans Health Care System, x Outpatient Clinic, dated 3 August 2017, states:a.He directly observed the applicant for several hundred contact hours, on anaverage of 1/5 hours per week, since August 2013. Despite the applicant’s consistent efforts, his PTSD from combat experiences and major depressive disorder symptoms predominate. b.Though presenting some evidence of some mental competencies, the applicant issignificantly hindered from normal functionality. Quantifiable measures of his limitations are reflected in the opinions of six licensed, independent mental health providers, as noted in his official VA medical records. The consistency in the diagnoses of PTSD, major depressive disorder, recurrent, and cognitive issues are reflected in his VA medical records. c.The applicant continues to battle PTSD and major depressive disorder. Whetherthe cognitive deficits are related to a possible TBI or occur in the context of his PTSD and/or depression, the applicant clearly does not function to the same capacity as he did before traumatic exposure. In addition to persistent disturbances in mood and motivation, his persistent state of hyper arousal is associated with severe difficulty regulating his mood, persistent suicidal ideation, near-continuous panic and depression that impact his ability to function independently, impaired impulse control, intermittent illogical and irrelevant speech, and a virtual inability to adapt to stressful circumstances, along with difficulty establishing and maintaining relationships. The psychologist’s opinion and that of other medical professionals, as stated above, uniformly agree that these are chronic conditions associated with PTSD and are clearly “more likely than not” a result of his combat experiences. 45.An ARNG Current Annual Statement, dated 7 December 2017, reflects theapplicant’s status as an ARNG unit member from 1 August 2013 until the end date ofthe statement on 26 November 2017, earning 15 membership points each year duringthat period and a total of 2 inactive duty training (IDT) points in 2013 and 1 IDT point in 2016. 46.A letter from ARBA, dated 21 December 2017, informed the applicant that hisrecords have been corrected in accordance with the findings of the ABCMR. A copy of the PEB and LOD results indicate no further action by the Board is required. He was advised to contact the FLARNG Adjutant General or the IG regarding his LOD appeals. 47.A DA Form 2173 (Statement of Medical Examination and Duty Status), dated8 February 2018, shows the following:•the applicant was admitted to Bay Medical Center in x, FLY on 8 April 2013 for injury related to PTSD, unspecified•the details of the accident or history of disease were completed by MAJ B____, an attending physician or patient administrator on 29 April 2013 and show the applicant was diagnosed with PTSD and that he deployed to Iraq from 9 May 2003 through 5 March 2004•the medical opinion shows the applicant was mentally sound and the injury was not incurred in the LOD•the applicant was receiving treatment for PTSD through the VA•on 8 February 2018, is was deemed a formal LOD investigation was required and the applicant’s injury was not considered to have been incurred in the LOD48.A FLARNG Office of the Adjutant General memorandum dated 30 April 2018, informed the applicant the 2018 Retention Board did not select him for retention. Accordingly, he would be separated/discharged from the ARNG no later than31 December 2018. The board noted major errors or omissions with the packet submitted for retention consideration. The character of his service was noted to be honorable and this is reflected in his record. He was informed he met the eligibility requirements for placement on the FLARNG Retired List and will be placed on the Retired List upon receipt of his request.49.A DD Form 261 (Report of Investigation LOD and Misconduct Status), approved on 17 May 2018, shows:•the initial report date was 30 May 2017•the investigation was of an injury to the applicant on 8 April 2013 at his home in x, FL•the injury was sustained through self-inflicted ingestion of pills and wrist cuts•the medical diagnosis was suicide attempt•the proximate cause was determined to be intentional misconduct or neglect•the applicant was deemed mentally sound at the time of the injury•the remarks state every indicator seems to show the Service Member was NOT mentally unsound at the time of his attempt•it was found not in the LOD•the action appointing and the action reviewing authorities approved the findings on 3 April 2018 .on 17 May 2018, the final approval authority, the Chief, NGB by authority of theSA, found not in the LOD – due to own misconduct for suicide attempt 50.A second DD Form 261, dated 29 June 2018 shows: .the initial report date was 30 May 2017 .the injury transpired on 8 April 2013 at Bay Medical Center, x, FL .the applicant was hospitalized for PTSD .due to unusual behavior he was hospitalized for behavioral health evaluation .intentional misconduct or neglect was the proximate cause of the injury and theapplicant was found mentally sound .the IO found the injury not in the LOD – due to own misconduct .the appointing authority approved the action on 8 June 2018 and the reviewingauthority approved the action on 12 June 2018 .On 29 June 2018, the final approval authority, the Chief, NGB by authority of theSA found in the LOD (ILOD) for PTSD, depression, and anxiety .the appointing authority reasons and substituted findings shows after a thoroughreview of the medical and behavioral health evidence, the appointing authorityconcurred with the IO findings, both after the original IO memo and his memoafter the applicant’s rebuttal. Further the NGB states that PTSD is ILOD 51.A DA Form 3349-SG (Physical Profile Record), dated 13 July 2018, shows: a.The applicant was given a permanent physical profile rating of “4” in the category“S” (Psychiatric) on 22 June 2017 and a permanent physical profile rating of “3” for Psychiatric on 15 July 2018. His physical profile rating in all other categories was “1.” b.The applicant was permanently limited in the following functional activities: .he was not physically and/or mentally able to carry and fire individual assignedweapon .he could not ride in a military vehicle wearing usual protective gear withoutworsening condition c.The medical instructions to the unit commander state the applicant was currentlyin the PEB process and should not have access to weapons/ammunition. He should have access to all behavioral health appointments. He should not use alcohol as it could worsen behavioral health conditions and interfere with medications. He should be given the opportunity for 8 consecutive hours of sleep every 24-hour period. He could not deploy to an austere environment, make a permanent change of station, temporary duty, or be discharged at his expiration term of service until a final fitness for duty determination was made. He should not be issued an individually assigned military weapon, attend any live fire drills, ranges, or participate in combat simulation events. He should not have immediate access to weapons during the physical profile period. He should remain stationed near a medical facility where definitive behavioral health care is available. He was being referred to the PEB in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. d.The applicant could perform all Army Physical Fitness Test (APFT) events andperform all other military occupational specialty tasks. 52.FLARNG Office of the Adjutant General Orders 257-047, dated 14 September2018, honorably separated the applicant from the ARNG effective 31 December 2018and transferred him to the Retired Reserve due to selective or qualitative retentionaction. 53.An NGB memorandum to the AHRC, dated 20 September 2018, states: a.The NGB was forwarding for final determination the applicant’s appeal of a LODdetermination. After notification to the applicant of the adverse LOD finding, the LODI was approved as not in the LOD – due to own misconduct, for suicide attempt and the applicant wished to appeal the finding. b.The NGB reviewed the appeal and submitted an opinion, which was not changedfrom the original determination. Included with the case were the applicant’s letter of appeal and additional medical documentation. A final determination was requested as to whether the LOD determination should be reversed for his suicide attempt. 54.Due to administrative error, FLARNG Office of the Adjutant General Orders 004-028, dated 4 January 2019, revoked FLARNG Office of the Adjutant General Orders257-047, dated 14 September 2018, which had previously honorably separated theapplicant from the ARNG effective 31 December 2018 and transferred him to theRetired Reserve as a result of selective or qualitative retention action. 55.An AHRC memorandum, dated 30 January 2019 states a.After a thorough administrative review of the LOD investigation, they determinedthe finding of not in the LOD-due to own misconduct would stand. Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and investigations) states LODdeterminations must be supported by substantial evidence and be a greater weight ofevidence than supports a different determination. b.After reviewing his medical documentation and medical records from theelectronic medical record system AHLTA, it has been determined his diagnosis of PTSD is not service-connected or service aggravated. The applicant reported PTSD symptoms in 2006 on his Post-Deployment Health Reassessment from his 2003 – 2004 deployment, but there was no follow-up behavioral health visits or recommendations. Additionally, he did not seek behavioral health treatment, according to AHLTA records, until April 2013, which was after his involuntary hospitalization for a suicide attempt. c.He was eventually diagnosed with PTSD from multiple providers along withdepression and anxiety. These diagnoses are based on his subjective report of military exposures, but only after his suicide attempt in April 2013. Assuming he had symptoms related to these behavioral health diagnoses prior to 8 April 2013, they did not appear to be of any significance as to interfere with his military career progression as evidenced by the dearth of medical records related to behavioral health issues. It was not until he was formally charged with a crime, which would certainly be an acute stressor, that he attempted suicide. He stated he had suicidal ideations for a few years before and after the attempt in April 2013, but there is no medical documentation of this. His behavioral health records revealed there have been no further suicidal attempts or ideations after April 2013. 56.A DA Form 7652 (Disability Evaluation System Commander’s Performance andFunctional Statement), dated 18 April 2019, shows the applicant’s commander indicatedthe following: .the applicant was unable to complete tasks and/or duties to standard .his medical conditions/limitations affected the unit’s ability to accomplish itsmission .the applicant’s last drill attendance was April 2013 .he was unable to perform basic tasks and work in a group environment, thusrestricting him from accomplishing any task as an individual or as a member of ateam .he makes simple decisions but usually not complex or unfamiliar decisions; doesnot make frequent decision-making mistakes when making simple decisions .he was unable to maintain effective work relationships .he was unable to perform any significant military tasks or duties because of hismedical conditions .he could not be assigned against a deployable billet or perform his duties in anoverseas deployed environment without restrictions, limitations, or work-arounds .it was not in the Army or the Soldier’s best interest for him to attend inactive dutytraining (IDT); his inability to perform his duties in an austere environmentprevented him from attending any future deployments .it is not the intent of the command to retain the applicant 57.An AHRC memorandum, dated 11 June 2019, states: a.After a thorough administrative review of his LOD investigation, they determinedthe finding of “not in the LOD – due to own misconduct” shall be changed to read in the LOD. b.The NGB determined on 29 June 2018, that his diagnoses of PTSD, depression,and anxiety were found to have been incurred or aggravated by military service. c.His case was inadvertently submitted to the AHRC for an appeal and AHRCerroneously sent him a memorandum dated 20 January 2019, advising him his diagnoses were not in the LOD-due to own misconduct. 58.FLARNG Office of the Adjutant General Orders 179-029, dated 28 June 2019released the applicant from his position as Public Affairs Officer in Headquarters andHeadquarters Company, 53rd Infantry Brigade and transferred him to the MedicalManagement Activity as a patient effective 10 June 2019. 59.Headquarters, U.S. Army Medical Command Orders MM-9199-00012, dated 18July 2019, ordered the applicant to active duty effective 9 July 2019 for the purpose ofparticipating in Reserve Component Managed Care-Evaluation/Disability EvaluationSystem at Fort Gordon, GA, with duty at Fort Walton Beach, FL. 60.A further review of the AHRC SMS confirms a transaction was completed totransfer the applicant from an archived record status (current organization “Y”, whichhad been his status since 7 October 2013) to Reserve Component Control in the ArmyNational Guard of the United States (current organization “A”) in order to voluntarilyactivate him for the purpose of active duty medical extension (ADME) - non-GWOT,effective 9 July 2019. SMS does not reflect the applicant’s ARNG membership between7 October 2013 thorough 9 July 2019. 61.The applicant’s Narrative Summary (NARSUM), after a final revision by theIndependent Medical Reviewer (IMR), dated 11 September 2019, shows the following(initial NARSUMs from 21 August 2019 and 26 August 2019 are not in his availablerecords for review): a.The sources and references used in the NARSUM include the Armed ForcesHealth Longitudinal Technology Application (AHLTA), DA Form 3349 (Physical Profile), the applicant’s VA claim form, his VA Compensation and Pension (C&P) Examinations, and other hard copy clinical records. b.The applicant was currently member of the FLARNG assigned to Headquartersand Headquarters 53rd Infantry Brigade, in a non-drilling status and was prior AGR from 1998 through July 2013. c.After a thorough review of the VA C&P Examinations, the following conditionswere identified: .PTSD: fails retention standards; incurred while entitled to base pay .lumbosacral strain: meets retention standards .degenerative arthritis of the spine: meets retention standards .spinal stenosis: meets retention standards; added post IMR .right lower extremity radiculopathy: meets retention standards .left lower extremity radiculopathy: meets retention standards .scar left wrist: meets retention standards .scar, status post hernia repair: meets retention standards .left patellofemoral pain syndrome: meets retention standards .left knee degenerative arthritis: meets retention standards .sensorineural hearing loss: meets retention standards .sensorial hearing loss, left ear: meets retention standards .tinnitus: meets retention standards .unclaimed condition, lumbar scoliosis: meets retention standards; added postIMR .unclaimed condition, obstructive sleep apnea: meets retention standards; addedpost IMR .unclaimed condition, TBI: meets retention standards; added post IMR d.The applicant met the medical retention determination point (MRDP) in that hewould not be capable of returning to duty within 1 year due to his PTSD. His DA Form 3349 shows he could not perform certain basic Soldier functional activities, including physically and/or mentally be able to carry and fire individual assigned weapon due to his behavioral health condition and live and function without restrictions in any geographic or climatic area without worsening his behavioral health condition. He was able to perform all events on the APFT. e.With regard to his PTSD condition not meeting retention standards, AHLTArecords reveal the applicant was diagnosed with PTSD on 28 June 2013. According to the applicant’s initial PTSD DBQ in 2013, he reported the combat related stressor of being exposed to an IED blast and blacking out for a period not exceeding 1 minute while deployed to Iraq in 2003. He separated from the AGR in July 2013, secondary to legal issues. He then applied to the ABCMR and upon the appeal of the initial ABCMR finding, it was determined that an MEB was required to complete the IDES processing. His first permanent S3 physical profile for PTSD was issued July 2018. f.The prognosis for his PTSD is fair and it is very likely he will not be returning tomilitary duty within the next 12 months. Most likely, his condition will not resolve over the next 3 years and he will need ongoing treatment beyond the next 12 months. A review of his Commander’s Statement indicated he is unable to maintain effective work relationships and does not attend drill. It is not the intent of the command to retain him. His most recent OER indicated his overall performance was outstanding. Review of his post-deployment health assessment (PDHA), dated June 2010, after deployment to Kuwait indicated he answered “no” to blast exposures, vehicle accidents, falls, etc. and no referrals were indicated. His April PDHR shows he answered his health was somewhat worse than before he deployed. 62.On 18 September 2019, the applicant’s MEB Counsel appealed the findings of theMEB on the applicant’s behalf, stating: a.The applicant requests that his thoracolumbar spine fail retention standards. Hewas referred to the MEB for his thoracolumbar spine and several other conditions. He originally hurt his back while on active duty and lifting weights. Two NARSUMS of the MEB findings have been issued in his case. The first NARSUM failed his thoracolumbar spine, but the amended NARSUM removed the spine as a failing condition and is completely void of any reference to the reason for the amendment. b.The first NARSUM indicates the applicant’s thoracolumbar spine has beenconservatively treated with muscle relaxers, radiofrequency and steroid injection, but does not mention the physical therapy he received for his back condition. The first NARSUM lists the defects found in the spine via radiographs and MRI and indicates the prognosis for the thoracolumbar spine is fair, as it would likely not resolve over the course of the next 3 years and require treatment beyond the next 12 months. It also references that AHLTA notes dated June 2010 and February 2012 were used to determine whether the thoracolumbar spine met or failed retention standards, which the second NARSUM fails to list. c.The second NARSUM does not indicate the applicant has had conservative care,including muscle relaxers, radiofrequency, steroid injections, and physical therapy. It indicates the Commander’s Statement does not mention back pain; however, the applicant has not been in a drilling status since 2013, so it is unlikely the commander would know. It also fails to indicate that the C&P examination indicates his thoracolumbar DBQ findings show he has degraded range of motion and pain that causes functional loss. d.The applicant’s most recent MRI, dated 1 August 2019, has been attached to thismemorandum and was used to compare to a previous MRI dated March 2016. The new MRI reflects “there is worsened and now moderate to severe loss of disc space height at L2/L3 with degenerative endplate changes and marginal disc osteophytosis. Severe multilevel facet arthrosis is present, most prominently at L3-S1.” e.The applicant has extreme pain in his thoracolumbar spine and it is painful for himto walk, sit for long periods, traverse uneven terrain, bend, stoop, and squat. He is unable to run as a result of his thoracolumbar condition and could not run to evade fire. His thoracolumbar condition is incompatible with his Infantry officer area of concentration, which requires carrying heavy combat loads while wearing 40 pounds of protective gear and would compromise his health. f.Army Regulation 40-501, chapter 3 lists multiple reasons a medical condition canbe considered disqualifying and he has attached a list for review. The applicant’s thoracolumbar condition impedes the performance of his duties and continuing to serve with his back condition would compromise his health and likely the well-being of other Soldiers in his infantry unit. 63.The appellate review physician provided a memorandum pertaining to the findingsof the applicant’s MEB appeal, dated 19 September 2019, which shows: a.As the appellate review physician, he was not involved in the adjudication of this MEB. He reviewed the MEB, all additional information presented by the applicant and his Counsel, and additionally made a review of all available documents related to the applicant’s medical conditions, pre and post deployment health assessments, individual career progression, physical fitness testing, OERs, Commander’s assessments and the VA C&P examinations. b. Diagnoses 1, 2, and 3, of the MEB, lumbosacral strain, degenerative arthritis of the spine, and spinal stenosis (added post-IMR) were found to meet retention standards in the original MEB findings. Upon appeal, lumbosacral strain, degenerative arthritis of the spine, and spinal stenosis were found to fail retention standards in accordance with Army Regulation 40-501, chapter 3, paragraph 39h. They were found to have existed prior to service and there was no permanent service aggravation. c. Additional information provided by the applicant or his Counsel included multiple visits to the Spine and Neuro Pain Specialist, Dr. S____, form 2015 through 2016, as well as a 3 January 2018 lumbar spine MRI scan performed at the applicant’s local VA hospital, as well as a primary care referral dated 13 September 2019 referring him to spinal surgery/neurosurgery specialist at his local VA hospital for possible surgical repair of his spinal stenosis. d. The medical basis supporting the appeal included a 3 January 2018 lumbar spine MRI scan, where he was found to have “Focal degenerative disc disease (DDD) L2-L-3 and #2 hypertrophy at the lower three lumbar levels with resultant lumbar scoliosis as described in three.” Additionally, the applicant’s plain lumbar spine films done in 2014 indicated significant degenerative joint disease and osteoarthritis at multiple levels. e. The applicant was seen in 2014 for increasing low back pain and subsequentlywas seen for the first time by Dr. S____ at the Spine and Neuro Pain Center on 9 December 2015. He told Dr. S____ that he began to have low back pain in 2007, when he was weight lifting during his Iraq deployment. Dr. S____ made the diagnosis of lumbar DDD. Significantly, the applicant’s neurological examination of both lower extremities was unremarkable. He was seen again in the same office on 10 October 2016 and 25 October 2016 and receives the same diagnosis. He was given his first epidural steroid injection on 9 December 2015 by Dr. S____ and the applicant reported receiving a right lumbar radiofrequency ablation procedure in April 2016, but an unspecified provider. f.On 5 April 2019, ha FLARNG medical provider gave him a non-duty related L3physical profile for the first time. The was specifically a non-duty related physical profile for low back pain. He was then seen by his VA primary care provider on 10 September 2019 for complaints of low back pain and was referred to a VA hospital spinal specialist with a diagnosis of lumbar DDD and spinal stenosis. g.It should be pointed out that the applicant is in a non-drilling status since April2013. Review of subsequent AHLTA Treatment records indicates no evidence of subsequent activities or injuries which would indicate the applicant’s multiple back diagnoses are permanently service aggravated. The applicant’s prognosis for the condition of lumbar strain, degenerative arthritis of the spine, and spinal stenosis is poor. He is 52-years old and the past 3 years indicate steady natural progression of is osteoarthritis symptoms requiring more aggressive treatment. The condition is not likely to improve for the applicant to be able to return to duty within the next 12 months and his diagnosis will not change within the next 3 years, if anything, the symptoms may bet worse. h.There is no impact on duty performance. The commander makes no mention ofany low back symptoms as being duty limiting. As noted, the applicant has not been drilling in the past 6 years and his FLARNG medical department providers indicate his low back condition was cause for a non-duty related MEB. Turning to the applicant’s Periodic Health Assessments (PHA), they indicate he was complaining of low back pain in 2014, but say that it currently was not a problem. Because of his non-drilling status, there are no PHA and there are no PDHA or PDHRA viewable in MedPros. i.Finally, the VA C&P back DBQ examiner made a diagnosis of right and leftradiculopathy solely on the applicant’s reported symptoms of moderate pain and mid paresthesia and numbness in both legs. The motor and sensory exam in both legs, like that found on the above noted exams at the Spine and Neuro Pain Specialist Clinic, was unremarkable. Right and left lower extremity radiculopathy meet retention standards. 64.The applicant’s available records do not contain a DA Form 199 (Informal PhysicalEvaluation Board (PEB) Proceedings) or a DA Form 199-1 (Formal PEB Proceedings) 65.A 27 September 2019 memorandum using an AHRC office symbol, signed by F___, Personnel Management Officer from unspecified office and addressed to the VA, states the following:a.The PEB found the applicant physically unfit to continue military service for thefollowing PEB-referred unfitting conditions: .PTSD (MEB diagnosis 1) .lumbosacral strain, degenerative arthritis of the spine, spinal stenosis (MEBdiagnoses 2-4) b.Please provide a VA disability rating percentage with rationale to this PEBadministration for all referred and claimed conditions. The Soldier’s component and current duty status as of the date of this memorandum is Army National Guard of the United States in a drilling status (M-Day). 66.A memorandum from Colonel F____, PEB President, addressed to the Commander, Eisenhower Army Medical Center, dated 29 October 2019, states the following:a.The PEB proceedings pertaining to the applicant have been returned for furtherevaluation, documentation, and/or information required for adjudication. b.This is an ABCMR case. Please disenroll him from VTA and restart the case asper ABCMR protocol, evaluating the officer as he was at the time of his discharge. Please ensure you include all the ABCMR paperwork as well as the ABCMR discussion of the officer’s LOD, which seems not to have been addressed by the ABCMR per the paperwork they have. c.Make sure to include the necessary DBQs for all the conditions that the ABCMRdirected be evaluated, including the competency and occupational and social impairment. This case is returned for “Why Code 110.” The “Why Codes” have been provided to each Medical Treatment Facility (MTF). Please upload the response and requesting information in ePEB. 67.Counsel provided numerous pages of redacted email correspondence datedNovember and December 2019, that all appear to be correspondence internal toofficials within MEDCOM, generally indicating the following: a.They are unclear on the way ahead and whether the applicant’s case is final andunder which authority when the Fort Benning MEB recommended no MEB on 9 March 2019, but the ABCMR proceedings indicated an “indefinite period pending.” b.It is also unclear to all how the applicant is back in an eligible duty status after heresigned in 2013. Was he drilling and performing duties; it was agreed not. The thought was he was somehow brought back on orders by an unknown authority and the FLARNG left this as a missing piece. They believed the ABCMR case was closed, but that the applicant might be currently in an eligible duty status for current IDES referral, since he had a P3 physical profile. The question remained why the FLARNG was moving forward with the MEB if the ABCMR case was closed and the applicant had resigned. 68.An ABCMR memorandum to the AHRC, dated 5 February 2020, states: a.On 21 June 2016, the ABCMR suspended the applicant’s resignation as aReserve Officer of the Army of the United States, withdrawal of Federal recognition, and discharge from the ARNG, pending additional information. Reviews conducted in accordance with the approved Board recommendation found no error or injustice that warrant a change to the applicant’s separation. The Board action as described in its 21 June 2016 decision is now final and considered closed. b.Therefore, under the authority of Title 10, U.S. Code, section 1552, the abovesuspension is vacated. The AHRC and the NGB in concert with the FLARNG will initiate appropriate action to effect the applicant’s separation and discharge in accordance with his resignation in lieu of proceedings for withdrawal of Federal Recognition, approved on 16 July 2013. c.It is requested necessary administrative action be taken to effect the correction ofrecords as indicated no later than 5 May 2020. Further it is requested that the individual concerned and Counsel, if any, as well as any Members of Congress who have shown interest be advised of this action and that the ABCMR be furnished a copy of the correspondence. 69.A letter from the ABCMR, dated 5 February 2020, informed the applicant that theABCMR’s decision resulted in no change to his records. The Board considered hisapplication under procedures established by the Secretary of the Army. Reviewsconducted in accordance with the approved 21 June 2016 Board recommendationfound no error or injustice to warrant a change to his resignation in lieu of proceedingsfor withdrawal of Federal Recognition, approved on 16 Jul 2013. The applicant wasinformed this decision was final and he may request reconsideration of this decisiononly if he could present new evidence or argument that was not considered by theBoard when it denied his original application. 70.A letter from the applicant to the ABCMR, dated 14 February 2020, states: a.He requested immediate halt to the action to vacate the Board’s recommendationdue to having an approved LOD for PTSD from combat dating from 2003 – 2004 and a back injury from his 2010 deployment. His packet was submitted through the IDES for processing and the MEB initially supported that he was non-retainable for both his PTSD and his lower back per medical evaluations. Two days later he received an updated stating his lower back was incurred prior to service, which is a total fabrication. His PTSD case was submitted to the PEB, upon which they informed the MEB they were to cancel per the ABCMR. The ABMR stated to enroll him in IDES. Why the change by the PEB? He then received a document where the ABCMR made a decision that resulted in no change to his records. He has not even finished processing through IDES for PTSD. b.He requests the ABCMR’s immediate assistance to understand how both hisback and PTSD-related combat injuries, that are both found to be worthy of non-retention and require submission though IDES per the original decision, is has now been vacated. He is completely dumbfounded as to why he would not be processed through IDES so that all of his medical treatment records would be used to make a decision on his case. c.The FLARNG was very clear that they did not need to see any of his medicalrecords to make a decision on his case. Emotion by its leaders ruled the day. Even before the partial relief was granted, they made one final stab at stopping it by getting someone at Fort Benning, GA, MEB to write a guess-work analysis without his knowledge or his pertinent medical records. The one behavioral health specialist spouting as to his sanity at the time of the suicide attempt use a Compensation and Pension (C&P) evaluator who was fired by the VA instead of the hundreds and hundreds of hours from his treating physicians. That is worthy of a letter from him to the Florida Medical Licensing Board. Why thin is the ABCMR closing a case before the MEB has finished its job? d.He was called on 19 February by his Physical Evaluation Board Liaison Officer(PEBLO) to set up a telephonic interview between him and a mental health specialist for 20 February 2020. He asked if this was a medical exam or if it was being used to make a decision on his PTSD. She said she did not know. She asked if he was enrolled in IDES and she said no, that he was to be processed by the military only. He told her that he would like to be present if it was a medical exam and she instructed him that was not available and that telephone was the only way. This is also very confusing to him. Does this speak to the lack of diligence of the MEB or is the decision pre-made and the telephone interview a formality? Why is the MEB getting so much influence from his command? Shouldn’t his medical records for the last 7 years speak for themselves? e.His depression, sever memory problems, lack of sleep, numbness, isolation,anxiety, and nightmares have kept him from any sort of happiness in life. The fact that his suicide attempt was declared not in the LOD is mind-boggling to him when he has an approved mental health issue from 2003- 2004. This pre-existing mental health problem did have an effect on his life and definitely on his suicide attempt. Per regulation, this should have prevented him from having that LOD declared not in the LOD. Yes, he lied on every physical or question related to mental health. A Fort Stewart, GA doctor told him he would not be able to serve if he did not change the answers he gave on the Post Deployment Health Assessment (PDHA). He told him he should not even talks about it, so he didn’t. f.He is currently undergoing transcranial magnetic stimulation (TMS) for his PTSDand depression. His wife of 29 years knows the truth because she saw the change in him when he came home. She continues to work with him as well as their son, yet she was ignored in her letters by the IO of his LODs. His father, a Vietnam veteran, wrote letters on his behalf talking about his understanding of him and his awareness due to his combat experience, yet his letters were ignored. 71.On 10 March 2020, the applicant’s Counsel requested the ABCMR provide himcopies of all records and documents pertaining to the applicant’s case file or record ofproceedings under the Freedom of Information Act. 72.The Army rates only conditions determined to be physically unfitting at the time ofdischarge, which disqualify the Soldier from further military service. The Army disabilityrating is to compensate the individual for the loss of a military career. The VA does nothave authority or responsibility for determining physical fitness for military service. TheVA may compensate the individual for loss of civilian employability. 73.Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensationfor 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 ofthe Army. 74.Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awardsdisability ratings to veterans for service-connected conditions, including those conditionsdetected after discharge. As a result, the VA, operating under different policies, mayaward a disability rating where the Army did not find the member to be unfit to performhis duties. Unlike the Army, the VA can evaluate a veteran throughout his or herlifetime, adjusting the percentage of disability based upon that agency's examinationsand findings. 75.On 17 February 2020, the ARBA medical advisor provided a medical review,stating: a.A medical advisory opinion review of this case was requested to determine if the applicant’s medical condition(s) met or did not meet medical retention standards in accordance with Chapter 3, Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 that were applicable to the applicant’s era of service. Specifically, this review will focus on the lumbar condition. The mental health condition will be reviewed under separate cover. The second request was to determine if the applicant’s medical condition was duly considered during his separation processing. b.The records reviewed included but were not limited to the application; thesupporting documents; the applicant's 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), the VA's Joint Legacy Viewer (JLV); and Counsel’s brief dated 9 November 2020. c.The applicant’s military records showed that his period of service was from 24December 2010 to 31 July 2013. He deployed to Iraq from 1 March 2003 to 31 March 2004; to Pakistan from 1 March 2008 to 30 April 2008; and to Kuwait from 1 March 2010 to 31 December 2010. He was released from active duty on 31 July 2013. His primary area of concentration (AOC) was 11A, Infantry Officer during that period of service. The Officer Evaluation Report covering the period from 2 January 2012 through 2 December 2012 showed that the applicant passed his APFT on 2 May 2012. The Senior Rater rated him as ‘Best Qualified’ for his promotion potential to the next higher grade. d.Per AHLTA records, the first record concerning the back condition occurred 30July 2007, when the applicant called into the Family Practice clinic requesting medication for his low back pain without mention of etiology. He arrived at a follow up visit a few days later (2 August 2007) reporting that he had awakened after a fishing trip with neck and back pain. After being seen that morning, he returned for a session of physical therapy that afternoon. 3 years later, during an 11 June 2010 theatre visit, he reported onset of back pain and feeling a ‘pop’ after squatting while weightlifting around 0745 that morning. He received a muscle relaxant injection and was placed on a 2-week no physical training (PT) or lifting profile. 4 months later, during a 15 October 2010 theatre visit, he reported a one-day history of lower back pain after a 7-mile ruck march. He was prescribed pain medication (Tylenol with codeine, 6 pills and an anti-inflammatory) by mouth and topical treatment and was referred to physical therapy for a TENS (transcutaneous electrical nerve stimulation) unit. About 16 months later (14 February 2012), he presented to the primary care clinic, reporting a 2-week history of low back pain without known injury. He described a constant dull pain that was worse with standing, exercising, and running. He also stated that the pain seemed to radiate down his right leg. He was treated with a muscle relaxant and anti-inflammatory, and a course of physical therapy was ordered. He was also placed on a temporary physical profile. Almost 1 year later (25 January 2013), he had a two-part readiness physical exam on 25 January 2013 and 20 February 2013. Based on that exam, he was determined to be able to perform his job without limitation; he was able to perform an APFT without limitation; and he was able to deploy. e.The applicant’s deployment related medical records showed that in his 14February 2004 PDHA (Post Deployment Health Assessment), he answered ‘no’ to the question ‘do you now or did you develop any of these symptoms during the deployment’ for the ‘back pain’ item. According to the 17 December 2010 PDHA for the 10-month Kuwait deployment, he denied experiencing any injury. He did mention going to sick call and being given quarters/physical profile for back pain; but endorsed that his back no longer bothered him. The provider wrote that he “had minor lower back strain in July 2010, resolved and no symptoms”. In contrast to the PDHA, during the 3 April 2011 PDHRA (Post Deployment Health Reassessment), he endorsed that he had been injured. Of note, when asked to select his deployment related concerns, he did not select back pain. f.The applicant’s medical record showed that he experienced intermittent, brief,relatively mild exacerbations of his lower back pain that did not require prolonged narcotics (if at all) for control. The condition had not required the specialty services of an orthopedic surgeon, or pain management to control his symptoms. There were no back films to review for his time in active service. There were no emergency room visits or hospitalization admissions for the lumbar condition. The condition had not required prolonged absence from duty or prolonged limited duty. The lumbar condition had not required prolonged profiling or a permanent level 3 physical profile. Based on review of available records, at the time of release from active duty in July 2013, the lumbar condition met retention standards in accordance with Army Regulation 40-501 chapter 3, and did not warrant separation through medical channels. Although an exam was not found that was specific for discharge planning on a DD Form 2808 (Report of Medical Examination), the lumbar condition was adequately assessed within 6 months of his separation as part of his Periodic Health Assessment. 76.On 22 February 2021, the ARBA psychologist provided a mental health medicalreview, stating in full: a.The applicant served in the FLARNG in the AOC 11A Infantry. He was orderedto full-time National Guard duty in (AGR) status reporting on 24 December 2010. He was arrested for child pornography on 15 April 2013 and was relieved from AGR status effective 31 July 2013. He was separated from the ARNG on 7 October 2013. He previously applied to the ABCMR to be reinstated to active duty status and or be medically retired or honorably discharged. This review is occurring due to a stipulated court remand. b.The ARBA psychologist was asked to review this case. Documentation reviewed includes the applicant’s ABCMR application, the electronic VA medical record (JLV), AHLTA, and HAIMS, and hardcopy/electronic military records. c.A review of the applicant’s medical records indicates he received medicaltreatment form July 2007 through July 2013. He was medically hospitalized on 8 April after his suicide attempt to repair tendon damage. He was psychiatrically hospitalized from 15-29 April 2013. On 29 April 2013, he reported “his thinking is clearer and his emotions are under much better control since starting Zoloft.” He “denied having nightmares since starting Sertraline.” He was then enrolled in intensive outpatient (IOP) treatment for 5 weeks. On 31 May 2013, he reported he was doing well and stated he would like to end his IOP treatment and continue with regular outpatient treatment. On 1 July 2013, the provider noted the applicant’s PTSD “much improved from last evaluation.” On 30 July 2013, he completed a neurological assessment. His MRI had no abnormal findings. Attention span was noted to be abnormal which would be consistent with his history of ADHD. Remote memory was not intact. Provider noted his symptoms were multifactorial due to PTSD, depression and sleep problems in addition to a history of mTBI. On 23 August 2013, his dosage of Concerta was increased. On 9 March 2017, ABCMR requested a determination from the PEB if the applicant should have been discharged or retired due to PTSD, mTBI, and/or MDD, recurrent moderate. The PEB determined “he should not have been discharged or retired by reason of a mental health disability or more specifically due to PTSD, MDD, and/or TBI.” d.Review of the applicant’s hardcopy VA records, VA’s Joint Legacy Viewer(JLV), and other supporting documents indicate that the applicant was treated in the VA system starting in August 2013. He was evaluated on 1 August 2013 with diagnoses of PTSD, marital discord, and ADHD (by history). A medication evaluation was completed on 15 August 2013 resulting in additional diagnoses of depression and anxiety disorder. He was enrolled in an intensive outpatient program from 13 August to 11 December 2013. He completed a C&P Examination on 10 December 2013. The provider diagnosed him with unspecified personality disorder, unspecified paraphilia, alcohol use disorder and history of TBI. The examiner reported testing with the Trauma Symptoms Inventory and “there was no data to support a diagnoses of PTSD” but acknowledged medical records showed diagnoses of PTSD and adjustment disorder with depressed mood secondary to his legal issues from his previous hospitalization. Results of brief neuropsychological tests indicated normal cognitive status, superior executive functioning, normal immediate memory, and superior visuospatial/constructional skills. He performed in the low average range for language production and attention with his difficulties placing his delayed memory in the borderline range. The examiner noted “occupational and social impairment due to mild or transient symptoms.” e.Treatment note from 21 January 2014 reports applicant “misses the structure of the IOP but still feels like it was one of the more positive steps he took in his life. He is working on putting his family back together.” Treatment note from 18 February 2014 indicates a service connected disability rating of 20% with 10% for tinnitus and 10% for lumbosacral or cervical strain. On 16 June 2014, the applicant reported medication compliance and “states that current regimen is helpful in controlling symptoms. On 6 November 2014, applicant’s mood was euthymic and provider noted cognition appears to be improving and medications “are fine” and continued at current dosage. Treatment note from 28 January 2015 indicates his service connected disability rating was increased to 40% with the addition of 20% for superficial scars. The applicant reported his mood as euthymic but dealing with some frustrating family interactions. On 15 September 2015, the applicant reported closing on his house and working on home improvements. He indicated he was going to court to try and end his probation. On 29 December 2015, the applicant reports he is doing well and his primary concerns are about his physical health. He is off probation and plans to request participation in the Veterans’ program for “new offenders.” Treatment note from 14 March 2018 indicates he completed an IOP and reports medications are effective for his mood and his sleep is fair. Treatment record from 11 July 2018 notes applicant’s medications are effective for his mood and he is doing well. He reported his LOD for PTSD had been changed to yes and he is awaiting a determination regarding a disability rating. He received a service connected disability rating of 70% PTSD, 50% for sleep apnea, and 20% each for intervertebral disc syndrome, superficial scars paralysis of sciatic nerve (X2), and 10% each for limited motion of wrist (X2), limited flexion of knee and tinnitus. f.Based on the review of all information, the applicant met retention standards atthe time of his discharge. The applicant’s service record does not indicate any occupational impairment. It is acknowledged that the applicant has a service-connected disability for PTSD. This determination alone, however, does not automatically mean that military medical disability/retirement is warranted. It is important to understand that the VA operates under different rules, laws, and regulations when assigning disability percentages than the Department of Defense (DoD). In essence, the VA will compensate for all disabilities felt to be unsuiting. The DoD does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting. g.It is important to understand that the role of compensating for post-separationprogression or complications of service-connected conditions was granted by Congress to the Department of Veterans Affairs and not a function or role of the DoD. h.PTSD is not considered a mitigating factor for the misconduct that led to hisdischarge. There is no nexus between PTSD and child pornography. 77.On 5 March 2021, the applicant and Counsel were provided copies of both of theARBA medical advisory opinions and given an opportunity to submit comments. Theyprovided two responses on 9 March 2021. 78.On 9 March 2021, Counsel provided the following response to the medical advisoryopinion: a.This letter constitutes the comments of the applicant on the advisory opiniondated February 17, 2021, provided by an ARBA medical advisor, whose name is redacted, but who claims the credentials “D, MPH” (medical advisor), regarding Mr. L’s lumbar condition. The advisory opinion was provided in connection with the applicant’s pending case on remand from the United States Court of Federal Claims, L v. United States. The advisory opinion was transmitted to counsel electronically on 5 March 2021, under cover of your letter dated that same day. b.References are made throughout this letter to the applicant’s remandsubmission made to the ABCMR dated 9 November 2020, and to the document Appendix (App’x) accompanying that submission. c.The ABCMR must reject and disregard the medical advisor’s conclusion in theadvisory opinion that “[b]ased on review of available records, at the time of release from active duty in July 2013, the lumbar condition met retention standards in accordance with Army Regulation 40-501 chapter 3, and did not warrant separation through medical channels.” The scope of the advisory opinion was inappropriately limited to a review of evidence relating to the applicant’s lumbar condition up until July 2013, and thus failed to consider medical and other evidence, including the results of a MEB in 2019, supporting the conclusion that the lumbar spine condition did not meet medical retention standards. d.The advisory opinion is inconsistent with the measures directed by the ABCMRin the proceedings before remand in June 2016, to remedy the applicant’s flawed release from active duty and discharge from the ARNG and Army Reserve. As part of that remedy, the ABCMR in June 2016, ordered the applicant’s disposition by the IDES, to include a MEB and if necessary, a PEB, to determine whether he should be retired by reason of physical disability. The applicant’s disposition through the IDES ordered in 2016, necessarily included consideration and evaluation of medical records and other evidence relating to his condition at the time of his IDES-related examinations and was not limited to evidence up to 2013. To that end, the ABCMR directed that any medical evidence submitted by the applicant, regardless of date or source, must be considered in his evaluation. e.Consistent with the scope of the ABCMR remedial measures ordered in theproceedings before remand, as well as the Court’s remand order, the applicant presented in his remand submission dated 9 November 2020, evidence and argument that his lumbar spine condition did not meet retention standards and was unfitting. The applicant focused on the results of his MEB and the MEB appellate physician’s decision in 2019, which found that his lumbar spine condition did not meet the retention standards of Army Regulation 40-501 and referred him to a PEB. Remand Submission 3-4, 12-13, 17-18, 22, 40, 50-51, 55. In addition, as reflected in the document appendix, the evidence is undisputed regarding the outcome of the MEB. f. Following the MEB at Fort Gordon, convened pursuant to the ABCMR’s direction in 2016 that the applicant be referred to the IDES, in a memorandum dated 18 September 2019, Dr. B____, the MEB Appellate Authority at Eisenhower Army Medical Center, granted the applicant’s appeal and changed the MEB determination to reflect that his lumbosacral strain, degenerative arthritis of the spine, and spinal stenosis failed retention standards in accordance with Army Regulation 40-501 Chapter 3. See App’x 188-191. g.To reach his decision, Dr. B____ considered additional medical records and information submitted by Mr. L's MEB counsel. See App’x 182-187. Those records reflected multiple examinations by the applicant’s spine and neurological pain specialist, Dr. S____, from 2015 through 2016, a 3 January 2018 lumbar spine MRI scan performed at a VA medical center, and a primary care referral dated 13 September 2019, referring the applicant to a spinal surgery/neurosurgery specialist at a VA medical center for possible surgical repair of his spinal stenosis. See App’x 188. The applicant’s MEB counsel also provided a permanent physical profile for the applicant dated 7 April 2019, reflecting a permanent L3 profile for “Lower Back Injury/Pain.” See App’x 164. h. Dr. B_____ provided as the medical basis for his decision that the applicant’s lumbar condition did not meet the retention standards of Army Regulation 40-501, the results of a 3 January 2018 lumbar spine MRI scan performed at a VA medical center which showed him to have "Focal degenerative disc disease (DDD) L2-L3, and #2 facet hypertrophy at the lower three lumbar levels with resultant lumbar scoliosis as described in three." See App’x 188. Additionally, Dr. B____ noted that the applicant’s “plain lumbar spine films done in 2014 indicated significant degenerative joint disease and osteoarthritis at multiple lumbar levels.” See App’x 188. The MRI results and lumbar spine results were provided to Dr. B____ by the applicant’s MEB counsel. See App’x 178-179, 183-186. i. The advisory opinion fails to address or consider any of the MEB-related evidence or argument submitted by the applicant due to the opinion’s inappropriately limited scope. As a result, the advisory opinion fails properly to consider all the evidence. Under the “arbitrary and capricious” substantial evidence standard “… all of the competent evidence must be considered, whether original or supplemental, and whether or not it supports the challenged conclusion.” Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir. 1983) (emphasis in original). j.The limited scope of the advisory opinion similarly is inconsistent with themeasures directed by the ABCMR in the proceedings before remand. The partial relief granted by the ABCMR in its decision dated 21 June 2016, ordered the applicant to be dispositioned through the IDES to evaluate his medical condition at that time. See App’x 84-113. Referral to the IDES for actual, in-person physical or other examinations in support of a MEB and PEB necessarily contemplates evaluation of the applicant’s medical condition as it exists at some time subsequent to 2016; it is far different from ordering a mere retroactive records review designed to ascertain his medical condition nearly three years earlier in 2013, which is essentially the function performed by the medical advisor. But for the error by the ABCMR in 2020 mistakenly believing that the applicant had been adjudicated fit by a PEB, which resulted in the remand of this case to the ABCMR, his IDES processing had led to an informal PEB preliminarily determining his PTSD and spine conditions were unfitting and referring them to the VA-DRAS for ratings. See App’x 192. Had the D-RAS provided to the informal PEB the ratings of the PTSD and spine referred conditions, it likely would have resulted in the applicant’s placement on the permanent disability retired list. k.The ABCMR ordered that the IDES processing should consider all availablemedical records related to the applicant’s medical history, including the proceedings of any MEB, PEB, ABCMR Proceedings, and medical records/ documents provided by him. See App’x 86-87. This direction by the ABCMR, which was not limited to considering medical evidence up to July or October 2013, was consistent with the IDES, under which a MEB and PEB make their determinations regarding application of military medical standards and ability to perform one’s duties based on input from a variety of sources, including VA medical examinations and VA D-RAS ratings. See generally DoDI 1332.18, Disability Evaluation System (DES), Enclosure 3, para. 1.d. (Aug. 5, 2014) (“IDES disability examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension standards. Collectively, the examinations will be sufficient to assess the Service member's referred and claimed condition(s), assist VA in ratings determinations and assist Military Departments to determine if the medical conditions, individually or collectively, prevent the Service member from performing the duties of his office, grade, rank, or rating."). l.There is no dispute that the MEB at Fort Gordon in 2019 ultimately determinedthe applicant’s lumbar spine condition did not meet the medical retention standards of Army Regulation40-501 and referred the condition to a PEB for a fitness determination. There is also no dispute that the advisory opinion did not consider that relevant evidence, submitted by the applicant to the ABCMR in his remand submission authorized by the Court’s remand order. The failure of the advisory opinion to consider and address all the relevant evidence is inconsistent with the remedial proceedings directed by the ABCMR prior to remand and contravenes the substantial evidence standard to which ABCMR decisions are subject. Accordingly, the ACMR should reject or give no probative weight to the advisory opinion. 79.On 9 March 2021, Counsel provided the following response to the mental health advisory opinion:a.This letter constitutes the comments of Mr. L on the advisory opinion dated 22 February 2021, provided by an ARBA psychologist, whose name is redacted, but who claims the credentials “PsyD, ABPP” (medical advisor), regarding the applicant’s PTSD. The advisory opinion was provided in connection with the applicant’s pending case on remand from the United States Court of Federal Claims, L v. United States. The advisory opinion was transmitted to counsel electronically on 5 March 2021, under cover of your letter dated that same day. b. References are made throughout this letter to the applicant’s remand submission made to the ABCMR dated 9 November 2020, and to the document Appendix (App’x) accompanying that submission. c. The ABCMR must reject and disregard the medical advisor’s conclusion in the advisory opinion that “[b]ased on the review of all information, the applicant met retention standards at the time of his discharge.” As explained in more detail below, the advisory opinion is so riddled with legal and factual flaws that no decision maker reasonably may rely on the medical advisor’s conclusions. First, the advisory opinion is predicated on the demonstrably false factual predicate that in March 2017, a PEB found that the applicant’s PTSD was not unfitting – the very same error committed by the ABCMR that prompted the Department of Justice (DoJ) to request that the United States Court of Federal Claims remand the applicant’s case to the ABCMR for corrective action. Second, the advisory opinion fails to consider substantial medical and other evidence supporting the conclusion that the applicant’s PTSD did not meet medical retention standards and was unfitting, including providing no rationale or explanation why the advisory opinion’s conclusion was contrary to that of an MEB that found his PTSD did not meet medical retention standards and referred him to a PEB. Third, the advisory opinion wrongfully fails to consider or to give any weight to medical or other evidence from the VA and is inconsistent with the remedial actions ordered by the ABCMR prior to the remand. Finally, the advisory opinion improperly concludes, without providing any rationale and contrary to DoD policy, that PTSD was not a mitigating factor for the misconduct leading to the applicant’s discharge under other than honorable conditions.d. The advisory opinion is erroneously based on the false factual predicate that a PEB in March 2017 determined the applicant’s PTSD was not unfitting. e.A dispositive factor for the advisory opinion’s conclusion that the applicant’sPTSD met retention standards at the time of his discharge was the medical advisor’s assertion that his medical records reflected a determination by a PEB on 9 March 2017, supporting that conclusion. In paragraph 5, the advisory opinion states: “Review of [the applicant’s] medical records indicates…on 9 March 2017, ABCMR requested a determination from the Physical Evaluation Board (PEB) if the applicant should have been discharged or retired due to PTSD, mTBI, and/or MDD, recurrent moderate. The PEB determined “he should not have been discharged or retired by reason of a mental health disability or more specifically due to PTSD, MDD, and/or TBI.” [emphasis added].” f.Despite the advisory opinion’s representation, it is undisputed that no PEBever considered or adjudicated the applicant’s case. The advisory opinion’s reliance on a false factual premise that a PEB previously had determined that his PTSD was not unfitting renders its conclusion clearly erroneous and compels the ABCMR to disregard the advisory opinion in its entirety. g.There is no rational explanation for the medical advisor’s egregiouslymisguided reliance on a fictitious PEB determination. That same error was perpetrated by the ABCMR and was prominently raised by the applicant as an example of arbitrary and capricious action in his complaint filed with the United States Court of Federal Claims. The ABCMR’s mistaken reliance on the spurious belief that a PEB had adjudicated the applicant’s case was a significant reason for the DoJ’s request for a voluntary remand of the case to the ABCMR and the Court’s decision to grant that request. Finally, the details and untoward implications of the ABCMR’s erroneous reliance on a fictitious PEB were discussed at length in the applicant’s remand submission to the ABCMR dated 9 November 2020. Submission to ABCMR at 1, 3-4, 14-16, 21-23, 53-55. Yet, despite this focus on the ABCMR’s mistaken reliance on abogus PEB determination by a PEB that never existed, including a Federal court’sremand of the case to the ABCMR to allow the board to fix that mistake, the medicaladvisor’s conclusion that the applicant’s PTSD met retention standards isunequivocally and squarely based and reliant upon the very same clear error. h.The memorandum dated 9 March 2017, that the advisory opinion falselycharacterizes as the determination of a PEB, was merely the opinion of a psychologist and physician at Fort Benning, GA, made without benefit of a personal examination or assessment of the applicant and was based on a limited and incomplete review of available medical records. See App’x 114-115. Based upon that opinion, the ABCMR sought to close the applicant’s case in December 2017, see App’x 129-132, although final action was not taken until February 2020. See App’x 211-212. The applicant alleged in his complaint filed in the United States Court of Federal Claims that the ABCMR decision denying relief was arbitrary and capricious because, among other errors, it was premised on the plainly erroneous conclusion that a PEB had determined that the applicant’s PTSD was not unfitting. See App’x 237-239. Rather than attempt to defend the ABCMR’s obvious error, DoJ moved the Court for a voluntary remand of the applicant’s case to the ABCMR. In his motion for a voluntary remand, DoJ counsel conceded that despite a MEB determination that the applicant “suffered from PTSD and back issues that did not meet medical retention standards” and the MEB’s recommendation that “[the applicant] be referred to a Physical Evaluation Board (PEB) to determine whether he was unfit for duty … it is undisputed that neither a PEB nor the ABCMR has determined whether [the applicant] was fit or unfit for duty at the time of his release from active duty.” DoJ counsel further advised the Court: “the appropriateness of remand is bolstered by the fact that a MEB has found that [the applicant’s] PTSD does not meet retention standards and referred him to a PEB. Under these circumstances, it is in the interest of justice for a competent board, i.e., the ABCMR, to make a fitness determination…” The DoJ counsel further admitted that “we have substantial and legitimate concerns regarding the decision to deny [the applicant] a medical retirement, in light of the MEB’s findings and the fact that no competent board has determined whether he was fit for duty at the time of his release from active duty.” In an order dated 29 October 2020, the Court granted the DoJ motion for a voluntary remand. See App’x 253-255. Based on the representation of the DoJ “that no PEB was convened as recommended by the MEB in 2019” and “given defendant’s recommendation that a fitness determination be made by a competent board,” the Court stated “we agree that a remand is appropriate and likely to save time and resources later.” i.The ABCMR must reject the advisory opinion’s conclusion as it violatesfundamental tenets of administrative law applicable to the correction boards. First, by basing its conclusion on the undeniably false factual predicate that a PEB determined in 2017 that the applicant’s PTSD was not unfitting, the advisory opinion failed to establish a “rational connection between the facts found and the choice made …” See Bowen v.American Hosp. Ass'n, 476 U.S. 610, 626 (1986). Second, by relying on a demonstrably false factual predicate, the advisory opinion has “offered an explanation for its decision that runs counter to the evidence before the [board], or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise...” See Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). In either case, the advisory opinion’s conclusion is fundamentally flawed, cannot be sustained, and must be rejected. See id. j.The advisory opinion improperly failed to consider or address substantialevidence that the applicant’s PTSD failed retention standards and was unfitting. k.The ABCMR must reject the advisory opinion’s conclusion that the applicant’sPTSD did not meet retention standards, because it improperly failed to consider or address a voluminous amount of evidence supporting a contrary conclusion. That evidence was discussed in detail in the applicant’s remand submission to the ABCMR dated 9 November 2019, together with the accompanying document appendix. In that submission, the applicant requested that this submission and the incorporated Appendix be provided to any medical advisor or other individual or organization within or external to the ARBA from which the ABCMR may seek input or an advisory opinion during the remand period. This will ensure that the author of the advisory opinion considers all of the relevant evidence and arguments and is able to provide the ABCMR with a reasoned opinion that reflects a contemplation of the entirety of the facts and circumstances pertinent to [the applicant’s] case. A failure to disclose this submission to the author of an advisory opinion presents a substantial risk that the ABCMR will run afoul of its obligation to consider all of the competent evidence, whether original or supplemental, and whether or not it supports the actions or conclusions challenged by [the applicant]. See Remand submission 2-3. l. It is readily apparent that the medical advisor did not review the applicant’s remand submission and, as a result, failed properly to consider all the competent evidence. Under the “arbitrary and capricious” substantial evidence standard of review to which a correction board is subject “… all of the competent evidence must be considered, whether original or supplemental, and whether or not it supports the challenged conclusion.” Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir. 1983) (emphasis in original). Because the advisory opinion failed to consider or address a significant amount of evidence presented by the applicant in his remand submission, which the Court ordered the ABCMR to address, the advisory opinion does not meet the substantial evidence requirement, is clearly erroneous and must be rejected. m. After a cursory discussion of the applicant’s medical records, largelyfocused on cherry-picked treatment notes and other entries reflecting some improvement in his condition following his April 2013 suicide attempt, as well as a reference to the conclusions of the fictitious PEB results from March 2017, the advisory opinion concludes that “[the applicant’s] service record does not indicate any occupational impairment …” and “… [he] met retention standards at the time of his discharge.” In reaching that conclusion, however, the advisory opinion neither addresses nor considers an overwhelming amount of medical and other evidence demonstrating that the applicant’s PTSD made him unfit for duty by reason of physical disability. n. For example, the advisory opinion fails to consider or address the conclusions of VA psychologist O____, Ph.D. in a PTSD Disability Benefits Questionnaire (DBQ) dated 8 August 2013, diagnosing the applicant with PTSD exhibiting “clinically significant distress or impairment in social, occupational, or other important areas of functioning.” See App’x 44-53. The advisory opinion fails to consider or address the medical opinion of H____, Ph.D., Staff Psychologist at the VA Gulf Coast Veterans Health Care System, who in a letter to the ABCMR dated 3 August 2017, stated that based on several hundred contact hours involving the treatment of the applicant since August 2013, his combat-related PTSD has chronically impaired his cognitive functions. See App’x 127-128. The advisory opinion fails to consider or address a second VA PTSD DBQ by O____, Ph.D., dated 17 July 2019, done as part of the applicant’s processing through the IDES ordered by the ABCMR in 2016, in which he was again diagnosed with chronic PTSD, resulting in “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks …” See App’x 145-151. o. The advisory opinion completely fails to consider or address the results of the MEB that evaluated the applicant as part of his IDES processing ordered by the ABCMR in 2016. On DA Form 3497, dated 26 August 2019, the MEB reported that the applicant’s PTSD did not meet the retention standards of Army Regulation 40-501, and referred him to a PEB for a fitness determination. See App’x 152-154. The MEB’s NARSUM, diagnosed the applicant with PTSD per DSM-5 criteria, and made clear that he was unable to perform any military duties: “This Soldier cannot perform certain basic Soldier functional activities as documented in Block 24 of DA Form 3349. This Soldier cannot: Physically and/or mentally able to carry and fire individual assigned weapon due to his behavioral health condition; live and function, without restrictions in any geographic or climatic area without worsening his behavioral health condition.” See App’x 155-161. As part of the MEB process, in a DES Commander’s Performance and Functional Statement, DA Form 7652, dated 18 April 2019, the applicant’s commander made it clear the applicant was unable to perform any military duties: the applicant is “unable to complete task and or duties to standards” and his conditions will prevent him from serving in his primary MOS/AOC in future assignments, because his “medical conditions/ limitations affect the unit’s ability to accomplish it’s [sic] mission.” The commander also stated that the applicant’s medical condition makes him “unable to perform basic tasks and work in a group environment thus restricting him from accomplishing any task as an individual or as a team.” The commander concluded: “It is not in the Army nor Soldier's best interest for the SM to attend IDT. The Soldier's inability to perform his duties in an austere environment prevents him from attending any future deployments. It is not in the intent [sic] of the command to retain this Soldier.” See App’x 133-135. p. One reasonably would expect the medical advisor to proffer a rationale for why the advisory opinion reached a conclusion starkly different from the MEB’s finding that the applicant did not meet retention standards and referring his case to a PEB. It is significant that the MEB, comprised of Army medical officials and duly convened and performing official duties pursuant to Army Regulation 635-40 and the IDES, as ordered as a remedial process by the ABCMR in 2016, reached a decision directly contrary to that of the advisory opinion. DoJ counsel thought that the MEB’s findings and referral were sufficiently significant that they warranted sending the case back to the ABCMR for a “do over.” The DoJ counsel explained to the Court that “the appropriateness of remand is bolstered by the fact that a MEB has found that [the applicant’s] PTSD does not meet retention standards and referred him to a PEB. Under these circumstances, it is in the interest of justice for a competent board, i.e., the ABCMR, to make a fitness determination…” Moreover, in sharp contrast to the apparent lack of concern exhibited by the medical advisor’s omission of any reference to the MEB in the advisory opinion, DoJ counsel admitted that “we have substantial and legitimate concerns regarding the decision to deny [the applicant] a medical retirement, in light of the MEB’s findings and the fact that no competent board has determined whether he was fit for duty at the time of his release from active duty.” The advisory opinion’s failure to consider or address the contrary results of the MEB, as well as the preponderance of other compelling evidence not supporting the advisory opinion’s conclusion, was unreasonable and demonstrates the advisory opinion’s lack of credibility and reliability. q. The following paragraphs at pages 6 – 20, infra, recount in detail the substantial evidence supporting a conclusion that the applicant’s PTSD was unfitting at least as early as 2013, and thereafter, none of which was considered or addressed by the advisory opinion. Although this evidence was similarly described in the applicant’s remand submission to the ABCMR, see Remand Submission 41 – 55, it is repeated here rather than incorporated by reference to ensure the record of the applicant’s comments on the advisory opinion is complete and preserved against subsequent misinterpretation or challenges for insufficiency or waiver. r. In a psychiatric outpatient admission report dated 30 April 2013, Dr. B____ at the Emerald Coast Behavioral Health Hospital diagnosed the applicant with PTSD secondary to his combat, with a current Global Assessment of Function (GAF) of 48 and a highest GAF in the last year estimated at 50. A GAF in the range 41 to 50 reflects a serious impairment in social or occupational functioning (i.e., no friends or unable to keep a job). See App’x 14-16. The was on active duty at this time. s. In a psychiatric assessment of the applicant dated 24 May 2013, Dr. B____ at the Emerald Coast Behavioral Health Hospital diagnosed the applicant as suffering from chronic PTSD from deployments beginning in 2004. Dr. B____’s assessment reflected the following regarding the applicant’s condition (See App’x 17-18.The applicant was on active duty at this time): .he was being followed in an Intensive Outpatient Program for PTSD andwould continue with at least weekly sessions with Dr. B____ or more asneeded .he was taking Zoloft (100 mg daily) .Zoloft is the brand name for sertraline, which is in a class ofantidepressants called selective serotonin reuptake inhibitors; it worksby increasing the amounts of serotonin, a natural substance in thebrain that helps maintain mental balance .he was taking Trazadone (50 mg) for sleep; Trazodone is used to treatdepression and is in a class of medications called serotonin modulators;It works by increasing the amount of serotonin, a natural substance in thebrain that helps maintain mental balance .he was taking Prazosin (1 mg) for his nightmares; Prazosin, althoughprimarily used to treat high blood pressure, is also used to treat sleepproblems associated with PTSD .the applicant’s score was 55, which reflects moderate symptoms ormoderate difficulty in social or occupational functioning (i.e., fewfriends, conflicts with peers or coworkers) .the applicant required continued treatment through the intensiveoutpatient program and individual therapy t. In an AHLTA note dated 28 June 2013, Major B____, USAFMedical Corps, Staff Psychiatrist and Mental Health Element Leader, diagnosed the applicant with PTSD after a consultation with the applicant’s therapist at the Emerald Coast Behavioral Health Hospital. Due to Mr. L’s ongoing relationship problems. Dr. B____ ’s note reflected the therapist’s recommendation against removing the applicant from the Homicidal Ideation (HI) log. The note reflects that the applicant continued to take Zoloft and Trazadone. See App’x 37. The applicant was on active duty at this time. u. In an AHLTA note dated 30 July 2013, Dr. B____ of the Eglin AirForce Base Neurology Clinic, diagnosed the applicant with mild TBI resulting from an IED blast that struck a vehicle in which he was an occupant in Iraq in 2003, as well as PTSD…notes headaches involve squeezing in sensation on the sides of his head and he also gets frontal sort of pains associated with sharp pains and worsened light sensitivity and sound sensitivity, tinnitus intensifies, +dizzy feeling. At baseline he has light sensitivity. Lasts for hours to one day. BC powder helps but doesn't get rid of it, Ibuprofen, tramadol helps minimally. He notes 1/4 to 1/3 of days in a month he has a headache. He notes problems sleeping, notes recurring nightmares as well, notes difficulty falling asleep and remaining asleep, Prazosin seemed to make it worse. Trazodone helps him fall asleep but not remain asleep. No known triggers other than loud noise. He also notes problems with short term memory. He has lost his wallet three times and forgets people. He notes difficulty with school since blast went off. Focus has been well as mood instability.” Dr. B____ states in the AHLTA note: personal history of TBI, Global War on Terrorism related, highest level of severity mild (Glasgow Coma scale 13-15), loc<1hr, post trauma amnesia<24hr): Patient is 46-year-old with h/o mTBI after blast/rpg exposure noted to have abnormal tandem gait and abnormal MOCA testing (see scanned in note). Brain MRI normal. His symptoms are multifactorial due to mTBI, PTSD, depression, and sleep problems. Symptoms reported will be attempted on treatment in stepwise manner.” See App’x 38-43. The applicant was on active duty at this time. v. In an Initial VA PTSD DBQ dated 8 August 2013, reflecting an examination of the applicant performed on 7 August 2013, psychologist O____, Ph.D., diagnosed the applicant with PTSD, attributing various anxiety reactions and interpersonal conflicts to the PTSD diagnosis. See App’x 44-53. This was 8 days after his illegal release from active duty at a time when the applicant remained a member of the ARNG and the Army Reserve. Dr. O____ determined the applicant’s PTSD caused “clinically significant distress or impairment in social, occupational, or other important areas of functioning” and that he exhibited the following symptoms of PTSD, among others: depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened effect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; and inability to establish and maintain effective relationships.” Dr. O____ noted that the applicant has been “suffering from PTSD according to various civilian documents from his hospitalization 30 April 2013 through 5 June 2013 and has been diagnosed with chronic PTSD …” w. In the PTSD DBQ, Dr. O____ reports the following statements by the applicant: "Since my redeployment in 2004, I was advised to seek help during my redeployment health re-assessment. I was pushed for promotion to Major and I knew I had to keep my top secret clearance so I did not pursue and get mental help. I wanted to kill myself in 2004 and 2005, but never got the nerve. My son was born while I was deployed in Ramadi and I came home to a 10 month old. I avoided crowds, friends, intimacy with my wife and I even closed off from my son. I struggled when I was out of uniform from my return and I was bitter and angry all the time. I started to get worse in 2007 when I transferred from x to x, and I tried to control everything around me as my head was in chaos. I blocked feelings and it was a constant requirement for me to perform my job. In 2007 I started becoming angry over the littlest of issues and simple things such as adding and subtracting were a struggle. Mowing the yard was difficult for me and my spelling was terrible. It still is. Not being able to complete sentences frustrated those around me and avoiding the triggers were a must. I tried to kill myself on 8 April 2013. I started at 11:15 am with a whole bottle of Tylenol and I cut my wrists for every hour starting at 2.15pm. I then crawled to the garage at 5.15 pm and cranked the car. My wife then opened the garage at 7.15 pm. I was seen during a Baker Act for 2 weeks in AriI [sic] 2013 following the attempt. I was then enrolled in intensive outpatient behavioral therapy for 4 1/2 weeks from May-June 2013 and was diagnosed with PTSD. I then started outpatient cognitive process therapy once a week. I got much worse and my medication was upped during CPT from 100mg to 150mg to 200mg of Zoloft. I am also taking Trazadone at 100mg. Following a mild TBI injury which was evaluated in July 2013 gave me an inability to focus or concentrate, so I was put on Concerta 18 mg. I also take Buspirone twice per day at 10mg for my anxiety. I tried Prazosin 1 mg at night for my reoccurring nightmares that got much worse when I started CPT but it didn't help me and I stopped taking it after informing Dr. B____ of Emerald Coast in x. I had no mental health treatment before April 2013. I have been continuously depressed daily since 2007. We have had marital problems for 10 years and I have avoided people and places since I've returned, angry and bitter. I became a workaholic and avoided people and stayed in the house. I'd self-medicate with alcohol and just sucked it up and hid it well from others as a top secret clearance paranoia set in. People were taking advantage of me and it bled over into work in 2007. I'd been a top notch worker, then I became addicted to food and pornography. I was not intimate with my wife and had low self-esteem. I had done destructive things and had suicide ideations off and on over the last few years and was very depressed in 2007. I stopped enjoying anything. During my Middle East tours in 2003 saw a lot of death and had near death experiences which I had put out of my mind and repressed. I feel tense and jumpy a lot." Dr. O____ indicated that the applicant “shows me multiple wrist cuts on both arms” and he “states recurring memories of military experiences are the primary cause and he had no psychological problems or treatment before that.” The applicant stated that he “currently attends a weekly PTSD group.” x.Dr. O____ further stated in the PTSD DBQ that the applicant recounted: "Iwas arrested on April 5th for downloading 2 files of child pornography. I admitted it to the offices [sic] and informed them that it was an accident and deleted the files. I have been addicted to pornography since 2004 … Alcohol allowed me to self-medicate. It got much worse and became a daily routine every evening. I have quit and not had any since 8 April 2013." y.Dr. O____ noted in the PTSD DBQ the following PTSD-related stressor eventrelated by the applicant: "During an IED blast in July 2003, I blacked out for a period that didn't exceed 1 minute. Others have said it was 20-30 seconds. I had clear fluid out of my left ear. I lost all of my hearing for 3 approximately [sic] days and the ringing in my ears has never stopped. I had numerous exposures to death and destruction. This was on the River road behind the hospital when I was with the B/1/124 infantry regiment." Dr. O____ also noted additional sentinel events other than stressors recounted by the applicant: "An IED blast in July 2003, 155mm detonated the left side of my vehicle. A sniper round was 5 inches from my head and an RPG round just missed my head in July 2003. I was exposed to multiple mortar rounds from 58mm to 120mm which came within close to extremely close proximity to me. I was ambushed multiple times by small arms and found multiple IED's over the course of the years which I stepped on then over them." z.In the PTSD DBQ, Dr. O____ identified the following PTSDdiagnostic criteria applicable to the applicant: (1)Criterion A. The applicant was exposed to a traumatic event where bothof the following were present: he experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and, his response involved intense fear, helplessness or horror. (2)Criterion B. The traumatic event is persistently re-experienced in thefollowing ways: recurrent and distressing recollections of the event, including images, thoughts or perceptions; recurrent distressing dreams of the event; acting or feeling as if the traumatic event were recurring, including a sense of reliving the experience, illusions, hallucinations and dissociative flashback episodes, including those that occur on awakening or when intoxicated; intense psychological distress or exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. (3)Criterion C. Persistent avoidance of stimuli associated with the traumaand numbing of general responsiveness (not present before the trauma), as indicated by: efforts to avoid thoughts, feelings or conversations associated with the trauma; efforts to avoid activities, places or people that arouse recollections of the trauma; markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others; restricted range of affect (e.g., unable to have loving feelings; and, sense of foreshortened future (e.g., does not expect to have a career, marriage, children or a normal life span. (4)Criterion D. Persistent symptoms of increased arousal, not presentbefore the trauma, as indicated by the following: difficulty falling or staying asleep; irritability or outbursts of anger; difficulty concentrating; hypervigilance; and, exaggerated startle response. (5)Criterion E. The duration of the symptoms described above in Criteria B,C and D is more than 1 month. (6)Criterion F. The PTSD symptoms described above cause clinicallysignificant distress or impairment in social, occupational, or other important areas of functioning. Dr. O____ noted that the applicant’s experience with the IED in Iraq in 2003 is the stressor which contributed to his PTSD diagnosis. aa. In the PTSD DBQ, Dr. O____ identified the following PTSD symptoms applicable to the applicant: depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened effect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; and inability to establish and maintain effective relationships. bb. In a letter to the ABCMR dated 3 August 2017, during the time when the applicant had been restored to a non-drilling service status by the ABCMR decision, H____, Ph.D., Staff Psychologist at the VA Gulf Coast Veterans Health Care System, x Outpatient Clinic, Naval Support Activity – x, stated that based on several hundred contact hours involving the treatment of the applicant since August 2013, his combat-related PTSD has chronically impaired his cognitive functions: “Whether the cognitive deficts [sic] are related to a possible TBI or occur in the context of his PTSD and/or depression, [the applicant] clearly does not function to the same capacity as he did before traumatic exposure. In addition to persistent disturbances in mood and motivation, his persistent state of hyperarousal is associated with severe difficulty regulating his mood, persistent suicidal ideation, near-continuous panic and depression that impact his ability to function independently, impaired impulse control, intermittent illogical and irrelevant speech, and a virtual inability to adapt to stressful circumstances, along with difficulty establishing and maintaining relationships (even with his loved ones).” cc. In support of his conclusions, Dr. H____ provided the following information:“Though presenting some evidence of some mental competencies, the applicant is significantly hindered from normal functionality. Quantifiable measures of his limitations are consolidated below for convenience, which reflect the opinions of 6 licensed independent mental health providers as noted in his official VHA medical records. The consistency in the diagnosis of PTSD, MDD Recurrent, and cognitive issues are apparent below: (1) 29 December 2016 B____, Ph.D ‘Chronic PTSD, MDD, Inneed of continued mental health services' (2) H____, Ph.D 40+ Assessments ‘Post-TraumaticStress Disorder, Chronic (3)2 November 2016 R____, MH RN ‘Worst case scenario thinking’(4)20 September 2016 B____ ‘Monotone’(5)14 June 2016 E____, J.D, Ph.D. and S____ NeuropsychologicalAssessment revealed the following: ‘I viewed him as having: possible mild unspecified neurocognitive disorder; MDD recurrent, PTSD’ ‘has shown evidence of a decline of cognitive functioning; ’‘He performed in the impaired range on written and oral information processing speed tasks; ‘He performed in the profound impairment range on selective attention and cognitive flexibility; ‘He required frequent repetition of questions and task interactions ‘Trails AT-score= 25 (Severe Impairment)’; ‘D-KEFS Executive Functioning Condition 3 and Condition 4 (Both Profound Impairment)’ (6) 8 April 2016 MH RN S____ ‘Instructed by VA to walk into clinic (without appointment due to severity and urgency of depression). Gradually increasing symptoms of depression and recent passive suicidal ideation’ (7) 8 May 2015 C____, Speech Language Pathology (SLP) Discharge Note ‘Speech Diagnosis: 799.52 Cognitive Communication Deficit’; ‘SLP and patient agreed that focusing on mental health issues is most beneficial at this lime’; NOTE: Patient was undergoing Prolonged Exposure Therapy with Psychologist B____ at the time of discharge. (8) 5 February 2015 E____, J.D, Ph.D. Neuropsychological testing revealed the following: ‘There is little doubt in my mind that he is suffering from an affective disorder; ‘[The applicant’s] current profile meets the criteria for major neurocognitive disorder; ‘[He] exhibited significant evidence of cognitive dysfunction ‘D-KEFS condition 3-1 (Severely Impaired); ‘Attention Domain Standard Score = 52 (Severely Impaired) ‘Numbers/Letters speed and efficacy = 19 (Severely Impaired; both) 'Summary: Complex attention: Average to Severely Impaired Range ‘Summary Affective Functioning/Social Cognition: Severe Depression. (9)13 September 2013 W____, Ph.D. ‘Axis I PTSD’(10)18 December 2013 P____, Ph.D. Discharge summary from PRRTP inpatient in Biloxi ‘Axis 1 PTSD and MDD recurrent"; ‘Scored a 22 on the SPRINT, a score significant for PTSD, and seven points lower than his pre-treatment’; ‘Scored a 63 on the 63 on the PCL-C Assessment which was positive for PTSD’; ‘Scored a 32 on the BDl-II at post-treatment which represents a decrease; still in the severe range for depression. (11) 16 December 2013 W____, M.D Psychiatrist. ‘Axis I PTSD”dd. Dr. H____ concluded: “The opinion of myself and other physicians as stated above uniformly agree that these are chronic conditions associated with PTSD are clearly ‘more likely than not’ a result of his combat experiences.” See App’x 127-128. ee. In a VA Review PTSD DBQ dated July 17, 2019, conducted in connection with the applicant’s referral to the MEB at Fort Gordon, when he remained in service in a non-drilling status as a result of the ABCMR decision in 2016, O____, Ph.D., Psychology, diagnosed the applicant with PTSD, resulting in “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation.” See App’x 145-151. Dr. O____ reflects the following statement by the applicant in the PTSD DBQ: “I was active duty in the US Army National Guard from 1998-2013. I’m still in and going through an MEB in a non- drilling status, inactive since 2013. I’ve had no civilian jobs. I’m unemployable and rated 70% for PTSD already and the other percent is for medical issues. I was a Platoon Leader and Executive Officer. I was in infantry. Currently an O-4. I have twenty-eight years total as a guard but eighty-three days short of active duty retirement. I was in Iraq from 2003-2004 as an Infantry Company Commander, I went on a lot of missions. In 2008, I was an Operations Officer for a small detachment in Pakistan. We were shot at doing special forces mission support. High school and college were great socially and okay academically. My academics improved after Basic/AIT in 1986 in major core subjects/classes. My behavioral functioning was extremely well prior and during combat. I earned many awards, top block OER’s, recognition. Following my first deployment, my behavior and performance went down. Especially in 2009 when I was told we were going back to Ramadi, Iraq.” ff. Dr. O____ reflected in the PTSD DBQ the following comments by the applicant regarding his mental health: “I’ve been working on myself over the last five years. I’ve also been doing two years of investigations, VA evals and re-evals. I ’m trying to get everything documented. I wanted them to acknowledge the IED blast on me and my PTSD from 2015/2016 neurological studies said it was invalid because of my severe PTSD at the time. They’re sending me to a neuropsychological evaluation. I’ve been in mental health treatment with a psychologist at the VA for therapy, Dr. B____. I was inpatient in 2013 and intensive outpatient in 2017 when I became badly depressed. I take Lorazepam, Topiramate, Venlafaxine, Trazodone, and Melatonin daily. I’ve been in a PTSD group weekly for five years. I’m always hyper vigilant, looking around. I don’t sleep well. I have bad dreams of death, obsessions about my son’s death. I don’t really have other combat dreams. I’ll wake up in a sweat. I’ll have bad dreams every other night. Sometimes about guns, weapons, shooting, me shooting and yelling and screaming, or losing control. I’m angry a lot, have to watch myself or excuse from things I enjoy doing. I don’t concentrate well at times. I get angered about my physical pains. I get depressed a lot. I drive defensively. I’m always on alert at home. I’ll double check the locks, do perimeter checks outside. In the past, I had engaged in some reckless and harmful behavior, in 2013. I’ll wake up and sit in the dark with the lights off waiting. I’ll avoid crowds, I’m hyper sensitive to noises, garbage, been in and around IED’s in combat. I’ve experienced explosions, multiple events where people shot at me. I went on numerous combat missions, saw deaths, blood and guts, saw it happened, results of commands I’d make. A lot of things. I gave the right commands but still affected by them. Sometimes I’ll have memories I try to avoid. I’ve had panic reactions at times thinking it was a heart attack. My depression comes and goes in waves. I’ll stay busy and that helps a lot. My wife and child make me happy. I just haven’t ever felt right since 2008. My experiences still really bother me. I swore I’d never go back to those hell holes. I have anxiety a lot. It’s hard to relax. Right after I got out, I felt paranoid and still get worked up. I have taken a lot of medications, past and presently, for psychological problems. Venlafaxine problem refilling recently caused serious issues (i.e. suicidal ideations, no sleep, basically all my PTSD symptoms come back very rapidly with depression). My wife was diagnosed with MS in 2016. My child found me under my Jeep in 2013 (eight years old). I received counseling for four months. He is a straight A student with a 4.5 GPA and going into his junior year of high school. He’s a baseball player, great kid, and well adjusted.” gg. In the PTSD DBQ, Dr. O____ identified the following PTSD diagnostic criteria applicable to the applicant: (1)Criterion A. Exposure to actual or threatened a) death, b) serious injury, inone or more of the following ways: directly experiencing the traumatic event(s); witnessing, in person, the traumatic event(s) as they occurred to others; learning that the traumatic event(s) occurred to a close family member or close friend; cases of actual or threatened death must have been violent or accidental; or, experiencing repeated or extreme exposure to aversive details of the traumatic event(s). (2)Criterion B. Presence of (one or more) of the following intrusion symptomsassociated with the traumatic event(s), beginning after the traumatic events occurred: recurrent, involuntary, and intrusive distressing memories of the traumatic event(s); recurrent distressing dreams in which the content and/or effect of the dream are related to the traumatic event(s); and marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s). (3)Criterion C. Persistent avoidance of stimuli associated with the event(s),beginning after traumatic event(s) occurred, as evidence of one or both of the following: avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s); avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s). (4)Criterion D. Negative alterations in cognitions and mood associated withthe traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following: persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame); markedly diminished interest or participation in significant activities; and, feelings of detachment or estrangement from others. (5)Criterion E. Marked alterations in arousal and reactivity associated withthe traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following: irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; hypervigilance; exaggerated startle response; problems with concentration; and, sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep). (6)Criterion F. Duration of the disturbance (Criteria B, C, D, and E) is morethan 1 month. (7)Criterion G. The PTSD symptoms described above cause clinicallysignificant distress or impairment in social, occupational, or other important areas of functioning. hh. Dr. O____ noted on the PTSD DBQ as applicable to the applicant’s PTSD: depressed mood; anxiety; suspiciousness; chronic sleep impairment; and disturbances of motivation and mood. Dr. O____ concluded: “For the VA established diagnosis of Post- traumatic stress disorder/depressive disorder (MEB referred condition) there is no change in the diagnosis. The diagnosis has been confirmed on exam.” ii.On a DA Form 3947, dated 26 August 2019, the MEB at Fort Gordon, GA,determined that the applicant suffered from PTSD, lumbosacral strain, degenerative arthritis of the lumbar spine, and lumbar spine stenosis, all conditions which did not meet the military retention standards of Army Regulation 40-501. The MEB recommended that the applicant be referred to a PEB. See App’x 152-154. At this time, the applicant had been restored to a non-drilling service status by the ABCMR decision. jj. The Fort Gordon MEB prepared a NARSUM for the applicant dated 11 September 2019. See App’x 155-161. The NARSUM noted the applicant’s deployments to Iraq from May 2003 to March 2004 and Kuwait from March 2010 to December 2010, and that the applicant was engaged in combat activity and is the recipient of the Combat Infantry Badge. At paragraph 6.b., the NARSUM states: “This Soldier cannot perform certain basic Soldier functional activities as documented in Block 24 of DA Form 3349. This Soldier cannot: Physically and/or mentally able to carry and fire individual assigned weapon due to his behavioral health condition; Live and function, without restrictions in any geographic or climatic area without worsening his behavioral health condition. “ kk. At paragraph 7, the NARSUM concludes the following for condition #1: Posttraumatic Stress Disorder: •Medical Basis for Diagnosis. Meets the DSM-5 criteria for the diagnosis for PTSD.•Onset. Major L is an Army Reserve Officer. AHLTA records reveal he was diagnosed with PTSD on June 28, 2013. .according to his Initial PTSD DBQ (2013) he reported the followingcombat related stressors: .stressor #1: While deployed to Iraq in 2003, he was exposed to an IEDblast and blacked out for a period that did not exceed 1 minute,numerous exposures to death and destruction, when he was in theB/1/124th infantry regiment. .he separated from the AGR in July 2013, secondary to legal issues. He,then, appealed to the ABCMR on March 09, 2017 (completed by FortBenning). Upon the appeal of the initial ABCMR finding, it was foundthat the MEB is required to complete the IDES processing. .his first permanent S3 PTSD profile was issued July 2018. .Treatment Summary. For his PTSD he has been followed at the VA. Hehas had 5 years of PTSD group therapy weekly. Currently, he takesLorazepam, Topiramate, Venlafaxine, Trazodone, and Melatonin daily.Treatment response is fair .currently, he is receiving behavioral health treatment through the VA. .Noncompliance: Not Applicable. .Prognosis Statement: For his PTSD condition the prognosis is fair. It isvery likely, that he will not be returning to military duty within the next 12months. Most likely, his condition will not resolve over the next 3 years.Most likely, he will need ongoing treatment beyond the next 12 months. .Impact on Duty. Review of his Commander’s Statement indicated that he isunable to maintain effective work relationships. He does not attend drill. TheCommander says, “it is not in the Army nor Soldier’s best interest for the SMto attend IDT. It is not in the intent of the command to retain this Soldier.” ll.In a DES Commander’s Performance and Functional Statement, DA Form7652, dated 18 April 2019, see App’x 133-135, the applicant’s commander stated the following: the applicant is “unable to complete task and or duties to standards” and that [his] conditions will prevent him from serving in his primary MOS/AOC in future assignments, because his “medical conditions/ limitations affect the unit’s ability to accomplish it’s [sic] mission.” The commander also stated that the applicant’s medical condition makes him “unable to perform basic tasks and work in a group environment thus restricting him from accomplishing any task as an individual or as a team.” The commander concluded: “It is not in the Army nor Soldier's best interest for the SM to attend IDT. The Soldier's inability to perform his duties in an austere environment prevents him from attending any future deployments. It is not in the intent [sic] of the command to retain this Soldier.” At this time, the applicant had been restored to a non-drilling service status by the ABCMR decision. mm.By memorandum dated 27 September 2019, to the VA Disability RatingActivity Site (D-RAS) in Seattle, the U.S. Army Physical Evaluation Board at Fort Sam Houston, Texas requested a VA rating for Mr. Lyon’s PTSD and back conditions, stating: The PEB found the applicant physically unfit to continue military service for the following PEB-referred unfitting conditions: .Posttraumatic stress disorder. (MEB Dx 1) (V1-Y; V3-Y; V4-Y) .Lumbosacral strain, degenerative arthritis of the spine, spinalstenosis. (MEB Dx 2-4) (V1-N; V3-N; V4-Y) .Please provide a disability rating percentage (with rationale) to thisPEB Administration for all referred and claimed conditions. nn. See App’x 192.The PEB never received the rating as it returned the case to the Fort Gordon MEB via memorandum dated 19 October 2019, for reprocessing as an “ABCMR case” to be resubmitted to the PEB within 15 days with the proper documentation and in the proper format and on 5 February 2020, the ABCMR closed the case denying all relief. oo. Although the VA D-RAS did not respond to the informal PEB’s request to rate his unfitting PTSD and back condition, the VA has rated the applicant’s service-connected PTSD at 70 percent effective 1 August 2013, with an evaluation of 100 percent effective 13 September 2013 due to hospitalization, and 70 percent from 1 January 2014, to the present. See App’x 205-210. In a Decision Review Officer (DRO) Decision dated February 13, 2019, the VA stated: “Service connection for posttraumatic stress disorder (claimed as insomnia, memory loss, PTSD/major depression) has been established as directly related to military service. An evaluation of 70 percent is assigned effective August 1, 2013, the date following discharge from service.” pp. The DRO Decision further stated: “An evaluation of 100 percent is assigned because of hospitalization over 21 days from September 13, 2013. The records indicate you were an inpatient at the VA hospital from September 13, 2013 to December 11, 2013 for your posttraumatic stress disorder. Considering you were an inpatient for at least 21 days a temporary total evaluation can be assigned.” qq. The DRO Decision detailed the basis for its rating as follows. We have assigned a 70 percent evaluation for your PTSD disorder based on: •Suspiciousness •Depressed mood •Near-continuous depression affecting the ability tofunction independently, appropriately and effectively •Disturbances of motivation and mood •Chronic sleep impairment •Near-continuous panic affecting the ability to function independently, appropriately and effectively •Difficulty in adapting to stressful circumstances •Difficulty in adapting to work •Inability to establish and maintain effective relationships •Flattened affect •Difficulty in adapting to a work like setting •Anxiety •Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupationaltasks (although generally functioning satisfactorily, with routinebehavior, self- care, and conversation normal) •Difficulty in establishing and maintaining effective work and social relationships rr. The applicant’s service connected degenerative joint disease of the thoracolumbar spine has been rated at 10 percent effective 1 August 2013, and 20 percent effective 24 June 2019. ss. In his remand submission, the applicant offered substantial rebuttal to the memorandum for the ABCMR dated 9 March 2017, in which a psychologist and doctor at Fort Benning opined that the applicant should not have been discharged or retired by reason of his PTSD (Fort Benning Memo or Memo). See App’x 114-115. In addition to mischaracterizing the Fort Benning Memo as the determination of a PEB, the advisory opinion failed to consider or address any of Mr. Lyon’s rebuttal, which is recounted below. tt. The Fort Benning memorandum is flawed factually and legally and is entitled to no weight. First, the memorandum’s conclusion that the applicant should not be referred to an MEB is directly contrary to and was repudiated by the ABCMR determination in its decision dated 21 June 21 2016, that the applicant should be referred to the IDES to determine whether he should be discharged or retired by reason of physical disability, which necessarily includes as a first step a referral to and consideration by an MEB. tt. Second, the memorandum failed to consider and address medical evidence that the applicant’s PTSD was chronic and was attributable to his combat deployment in Iraq. The memorandum did not address or consider the psychiatric reports dated 30 April and 24 May 2013, of Dr. B____ at the Emerald Coast Behavioral Health Hospital, see App’x 14-18, in which Dr. B____ stated that the applicant was diagnosed with combat-related, chronic PTSD, with GAF scores reflecting, respectively, serious social or occupational impairment and moderate difficulty with social or occupational functioning. Nor did the memorandum address or consider the conclusions of Dr. O____ in the VA PTSD DBQ dated 8 August 2013, see App’x 44-53, in which Dr. O____ identified an IED explosion in Iraq in 2003 as a stressor event for the applicant’s PTSD and his combat deployments as sentinel events for the PTSD, and Dr. O____ stated that the applicant’s PTSD caused “clinically significant distress or impairment in social, occupational, or other important areas of functioning” and that his exhibited the following symptoms of PTSD, among others: depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened effect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; and inability to establish and maintain effective relationships. uu. Third, contrary to the speculative conclusions of the memorandum, the MEB at Fort Gordon that did consider the applicant’s case in August 2019, determined that his PTSD did not meet retention standards and recommended disposition of his case by a PEB, see App’x 152-154, which resulted in a preliminary finding by an informal PEB in September 2019, that the PTSD was unfitting. See App’x 192. vv.Fourth, the Fort Benning memorandum reliance on the lack of a diagnosis ofPTSD prior to April 2013 or the applicant’s failure to report his PTSD symptoms prior to that time is inconsistent with the principles set forth in Secretary of Defense Chuck Hagel’s memorandum entitled “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder,” (3 September 2014) (Hagel memorandum) and Under Secretary of Defense Anthony Kurta’s 2017 memorandum entitled “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,” (25 August 2017) (Kurta memorandum). The Hagel Memorandum instructed the ABCMR to give “special” or “liberal” consideration to applications from veterans diagnosed with PTSD and to consider PTSD and PTSD-related conditions. The Kurta memorandum made clear at paragraph 26.d. that liberal consideration includes the notion that “Mental health conditions, including PTSD … impact veterans in many intimate ways, are often undiagnosed or diagnosed years afterwards, and are frequently unreported.” The ABCMR is bound by the Hagel and Kurta memoranda and a failure to apply the liberal considerations to the applicant’s application they mandate by adopting the Fort Benning Memo would be error. See Hassay v. United States, 150 Fed.Cl. 467 (2020) (BCNR failure to take into account the principles outlined in the Hagel and Kurta memoranda was arbitrary, capricious, and contrary to law). ww. Finally, because the Fort Benning memorandum failed to address or even review the VA PTSD DBQ prepared by Dr. O____ on 8 August 2013, see App’x 44-53, it would be a violation of Title 10 U.S.C. section 1552(h)(2) for the ABMCR to give weight to or adopt the memorandum’s conclusions. Title 10 U.S.C. section 1552(h)(2)(A)-(B) requires for an applicant, like this applicant, whose PTSD is combat-related, that the ABCMR must review VA medical evidence he presents and review his application “with liberal consideration to the claimant that post-traumatic stress disorder … potentially contributed to the circumstances resulting in the discharge or dismissal or to the original characterization of the claimant’s discharge or dismissal.” xx.In his remand submission, the applicant presented and discussed his servicetreatment records, his VA treatment records, and private treatment records all of which consistently reflected that he began to suffer from chronic PTSD following his combat experience in Iraq in 2003 and 2004, and by July 2013 the PTSD was causing him “clinically significant distress or impairment in social, occupational, or other important areas of functioning.” The advisory opinion erroneously considers and addresses none of this evidence. The Army’s failure to consider or address the applicant’s diagnosis with PTSD prior to his release from active duty and discharge from the FLARNG, the Army National Guard of the United States, and the Army Reserve in 2013, resulted in the ABCMR’s decision on 21 June 2016, suspending the applicant’s discharge and directing his referral to the IDES to determine whether he should have been retired by reason of physical disability. Consistent with that direction, the MEB at Fort Gordon found that the applicant’s PTSD failed medical retention standards and referred his case to a PEB. The advisory opinion erroneously fails to mention or address the significance of the MEB proceedings or evidence. An informal PEB at Fort Sam Houston, Texas preliminarily determined those conditions were unfitting and requested VA ratings, demonstrating that the applicant’s disability was continuous since April 2013, permanent, and stable. The advisory opinion makes no mention of this fact. When one considers all the evidence, as the law requires and contrary to the advisory opinion, the record evidence conclusively and consistently establishes, certainly well beyond a preponderance, that the applicant was unfit for duty due to his PTSD at the time he was released from active duty effective 31 July 2013, discharged from the service effective 7 October 2013, and continuously thereafter. yy. The advisory opinion erroneously fails to consider or give weight to VA medical and other evidence. zz. In paragraphs 7 and 8 of the advisory opinion, the medical advisor gives no weight to and was not influenced by VA medical or other determinations, because the medical advisor explained a VA service-connected disability for PTSD “alone … does not automatically mean that military medical disability/retirement is warranted.” According to the advisory opinion, that is because the “VA will compensate for all disabilities felt to be unsuiting … The DoD does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting.” The advisory opinion’s failure to consider VA medical evidence is error. It is inconsistent with the ABCMR determination in this case regarding the scope of evidence to be considered in providing relief to the applicant and ignores the fact that probative VA medical evidence was provided in support of the applicant’s disposition through the IDES up until the wrongful termination of that proceeding that led to this remand. aaa. Contrary to the position of the advisory opinion, the ABCMR in its proceedings considering the applicant’s application prior to the remand of the case made very clear that all of Mr. Lyon’s medical records, whether service treatment records, private medical records, or VA treatment records were relevant to assessing whether his PTSD warranted his retirement by reason of a physical disability. The partial relief granted by the ABCMR in its decision dated 21 June 2016, ordered the applicant to be dispositioned through the IDES by evaluating his medical condition as it existed at some point following the ABCMR’s order. See App’x 84-113. Referral to the IDES for actual, physical examinations in support of a MEB or PEB at some date subsequent to the date of referral is far different from ordering a mere retroactive records review designed to ascertain the applicant’s medical condition nearly 3 years earlier in 2013. But for the error by the ABCMR in 2020 mistakenly believing that the applicant had been adjudicated fit by a PEB, which resulted in the remand of this case to the ABCMR, the applicant’s IDES processing had led to an informal PEB preliminarily determining his PTSD and spine conditions were unfitting and referring them to the VA D-RAS for ratings, a step that likely would have resulted in his placement on the permanent disability retired list. See App’x 192. bbb. As part of the remedial step ordering the applicant’s referral to the IDES, the ABCMR ordered that the IDES processing should consider all available medical records related to his medical history, including the proceedings of any MEB, PEB, ABCMR Proceedings, and medical records/ documents provided by the applicant. See App’x 86-87. This direction by the ABCMR, which was not limited to considering medical evidence up to July or October 2013, was consistent with the IDES, under which a MEB or PEB make a determination regarding application of military medical standards or ability to perform one’s duties based on input from a variety of sources, including VA medical examinations and VA D-RAS ratings. See generally DoDI 1332.18, Disability Evaluation System (DES), Enclosure 3, para. 1.d. (Aug. 5, 2014) (“IDES disability examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension standards. Collectively, the examinations will be sufficient to assess the Service member’s referred and claimed condition(s), assist VA in ratings determinations and assist Military Departments to determine if the medical conditions, individually or collectively, prevent the Service member from performing the duties of his office, grade, rank, or rating.”). ccc.The VA medical and other evidence improperly ignored and not evaluatedor considered by the medical advisor was directly relevant to a determination of military unfitness because it related to a period of time during which the applicant either was on active duty or an active member of the ARNG or Army Reserve or was in excess leave status undergoing disposition by the IDES to determine his fitness for duty. (1) In a VA PTSD Disability Benefits Questionnaire dated 8 August 2013, reflecting an examination of the applicant performed on 7 August 2013, psychologist O____, Ph.D., diagnosed the applicant with PTSD exhibiting “clinically significant distress or impairment in social, occupational, or other important areas of functioning.” See App’x 44-53. This was 8 days after his illegal release from active duty at a time when he remained an active member of the ARNG and the Army Reserve. (2) In a letter to the ABCMR dated 3 August 2017, during the time when the applicant was on excess leave as a member of the FLARNG and Army Reserve pending disposition by the IDES, H____, Ph.D., Staff Psychologist at the VA, Gulf Coast Veterans Health Care System stated that based on several hundred contact hours involving the treatment of the applicant since August 2013, his combat-related PTSD has chronically impaired his cognitive functions. See App’x 127-128. (3) In a VA Review PTSD Disability Benefits Questionnaire dated 17 July 2019, conducted in connection with the applicant’s processing in the IDES and referral to the MEB at Fort Gordon, when the applicant was on excess leave as a member of the FLARNG and Army Reserve, O____, Ph.D., Psychology, diagnosed the applicant with PTSD, resulting in “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks …” See App’x 145-151. ddd. The ABCMR understood that all VA and other medical records relating to the applicant’s PTSD were relevant to making a proper fitness determination through the IDES process focused on his condition at the time of evaluation in that process subsequent to the ABCMR decision in June 2016. The ABCMR placed no limitations on considering such documents. The advisory opinion’s unsupported refusal to assess or to give any weight to relevant VA medical evidence regarding the applicant’s chronic PTSD and its symptoms renders its conclusions unreliable and meaningless. eee. The advisory opinion erroneously dismisses PTSD as a mitigating factor for the applicant’s characterization of discharge fff. At paragraph 9, the advisory opinion makes the following conclusory and erroneous statement, without explanation, analysis or support: “PTSD is not considered a mitigating factor for the misconduct that led to his discharge. There is no nexus between PTSD and child pornography.” The ABCMR must reject this statement as it is inconsistent with DoD policy and its lack of any supporting rationale renders it arbitrary and capricious and of no probative value. Moreover, the advisory opinion improperly fails to address or consider the applicant’s evidence and argument in his remand submission to the ABCMR dated 9 November 2020, that his PTSD was a mitigating factor warranting upgrade of his discharge from under other than honorable conditions to honorable. ggg. As outlined in his remand submission, the ABCMR is required to give “special” or “liberal” consideration to the applicant’s PTSD as a potential mitigating factor with regard to the conduct that led to his release from active duty and separation from service with a discharge under other than honorable conditions. See “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder,” (3 September 2014) (Hagel memorandum). On 25 August 2017, Undersecretary of Defense Anthony Kurta issued a memorandum providing supplemental guidance expanding upon the Hagel Memorandum with examples of relevant evidence and providing four questions to be posed when assessing whether the veteran’s PTSD mitigated the circumstances of the discharge (Kurta memorandum). The Kurta memorandum instructed the ABCMR to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD and stated that absent clear evidence to the contrary, a diagnosis rendered by a licensed psychiatrist or psychologist is evidence the veteran had a condition that may excuse or mitigate the discharge. The Kurta memorandum also instructed that conditions or experiences that may reasonably have existed at the time of discharge will be liberally considered as excusing or mitigating the discharge and that liberal consideration includes but is not limited to the concept that mental health conditions, including PTSD affect one's behaviors and choices causing veterans to think and behave differently than might otherwise be expected. The ABCMR is obligated to consider and adhere to the principles enunciated in the Hagel and Kurta memoranda in adjudicating Mr. Lyon’s case. Hassay v. United States, 150 Fed.Cl. 467 (2020). hhh. An analysis of the DoD Guidance as it relates to the facts of the applicant’s case, demonstrates he squarely meets the criteria warranting liberal or special consideration for the relief he seeks, particularly with respect to the upgrade of his illegally issued discharge under other than honorable conditions. The advisory opinion neither discusses the specifics of that guidance nor explains how it applies to the facts and circumstances of the applicant’s case, despite opining that PTSD is not a mitigating factor. iii.The evidence is undisputed that the applicant suffered from PTSD, arisingfrom his combat experiences in Iraq in 2003 and 2004. See App’x 14-18, 44-53, 127-128, 145-151. Consistent with the Kurta memorandum, the applicant’s PTSD at a minimum may excuse or mitigate his UOTHC discharge (“Absent clear evidence to the contrary, a diagnosis rendered by a licensed psychiatrist or psychologist is evidence the veteran had a condition that may excuse or mitigate the discharge.”). jjj. The evidence indicates that the applicant’s chronic PTSD caused him to act in an aberrant and impulsive manner, conduct inconsistent with an otherwise solid record, leading to his arrest, his suicide attempt, and his release from active duty and separation with a UOTHC discharge. Following his tour in Iraq in 2003 and 2004, the applicant’s memory and mental processing ability were impaired and he began to suffer from constant headaches. The applicant did not report the degradation in his physical and mental condition, because he worried that admitting the true nature of his condition was a sign of weakness and would adversely affect his security clearance and his opportunities for promotion and enhanced assignments within the FLARNG. In or about 2008, as he began training with his unit for a scheduled combat deployment to Kuwait, then a major, the applicant began experiencing the symptoms of PTSD, including high levels of anxiety, panic attacks, memory loss, communication and physical fitness issues, a lack of energy, weight gain, depression, and anger control issues. By 2012 and 2013, his PTSD caused him to experience significant short-term memory loss and a deterioration of his cognitive abilities. He constantly felt angry, bitter and depressed, causing a breakdown in and isolation from personal relationships with his wife and son. The applicant also began to have suicidal ideations. See App’x 48-49; 78-80. kkk. Significantly, as a result of his PTSD, Mr. L engaged in impulsive conduct and he downloaded and viewed adult pornography as a means of avoiding his wife and confronting the emotional distance he had placed between them. In doing so, the applicant inadvertently downloaded two files containing pornographic images of minors, which resulted in his arrest by Florida civil authorities on 5 April 2013, and the rushed initiation by the FLARNG to separate him. See App'x 48-49; 78-80. As Dr. H____ aptly put it in his letter dated 3 August 2017, discussing the severe occupational and social impacts of the applicant’s chronic PTSD: "None of his providers are offering an excuse for his past legal issues, but impulsive and risky behavior is all-too-common with Veterans diagnosed with PTSD." See App'x 127-128. lll. The Kurta memorandum recognizes the impact PTSD may have on a veteran like the applicant to act inappropriately: "Mental health conditions, including PTSD ... inherently affect one's behaviors and choices causing veterans to think and behave differently than might otherwise be expected." That is why the Kurta memorandum compels the conclusion that the applicant’s PTSD should be liberally considered as excusing or mitigating his actions and resulting discharge: "Conditions or experiences that may reasonably have existed at the time of discharge will be liberally considered as excusing or mitigating the discharge." mmm.The applicant’s PTSD caused him to make choices and behave inways that he would never have considered had he been well. Had he not suffered from PTSD, the applicant would have continued the exemplary service in the FLARNG that characterized his 17 years of active Federal service and 27 years of Reserve service. Although the applicant has never made light of, and has acknowledged and owned up to his responsibility for an addiction to pornography that led to his civil arrest, even the DoD acknowledges that PTSD causes service members to do things they would never have done. Finally, consistent with the Kurta memorandum: "Liberal consideration will be given to veterans petitioning for discharge relief when application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD." nnn. The extensive factual and legal errors in the advisory opinion require that the ABCMR reject its conclusion that the applicant’s PTSD met retention standards. The overwhelming weight of the evidence, which the advisory opinion inexplicably and unreasonably ignores and refuses to discuss, demonstrates that the applicant’s release from active duty and his discharge resulted from material error or injustice, which the ABCMR must remedy by granting him the full relief he requests. BOARD DISCUSSION: 1.After reviewing the application and all supporting documents, the Board found thatpartial relief was warranted. 2.The Board reviewed the applicant’s contentions, his complaint and the Court’sremand order, counsel’s brief dated 9 November 2020 with accompanying appendix,and the evidence of record. The Board found the applicant demonstrated by apreponderance of evidence that an error or injustice occurred when he was releasedfrom active duty in Active Guard/Reserve (AGR) status without a referral for disabilityprocessing. The Board further found that a preponderance of evidence reflects theapplicant was unfit for duty because of PTSD at the time of his 31 July 2013 releasefrom active duty. 3.The Board next reviewed applicant’s request to be medically retired rather thanseparated through his resignation of AGR status and resignation in lieu of withdrawal ofFederal Recognition. The Board reviewed the entire file including both courses ofaction, as required by AR 635-40, para. 4-4, to decide the proper disposition of thecase. The Board considered that the applicant was arrested for possession of childpornography and pleaded guilty to possession of child pornography in a civil court. These actions constitute moral or professional dereliction in accordance with AR 135-175, para 2-11. The Board found that a greater weight of the evidence supported the course of action to eliminate the applicant by accepting his resignation rather than medically retiring him for physical disability. 4.With respect to the alleged administrative discharge process errors, the Board foundthat the applicant voluntarily requested to resign and was discharged in lieu of thewithdrawal of Federal Recognition. As previously noted, the Board determinedacceptance of the resignation was the appropriate course of action in light of theapplicant’s admitted misconduct. The greater weight of the evidence reflects noirregularities in the process that prejudiced a substantial right of the applicant. 5.Next, the Board considered the applicant’s contention that a discharge upgrade iswarranted in the interest of justice. The Board considered the applicant’s contentions inlight of the evidence of record, to include the February 2021 ARBA medical advisoryopinion. The Board weighed the opinion of the ARBA medical advisor that PTSD is notconsidered a mitigating factor for possession child pornography against the opinion ofthe VA staff psychologist who, more generally, stated that PTSD is not an excuse forthe applicant’s legal issues, but impulsive and risky behavior can occur with veteransdiagnosed with PTSD. The Board gave greater weight to the opinion of the ARBAmedical advisor and concluded that an upgrade to the applicant’s discharge is notwarranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF XXX XXX XXX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1.The Board determined the evidence presented is sufficient to warrant arecommendation for partial relief. As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected to show thathe was unfit for duty because of PTSD at the time of his 31 July 2013 release fromactive duty. In light of the dual processing requirements of AR 600-8-24 and AR 635-40, the Board further recommends providing this Board’s determination to theDASA (RB) for review and decision regarding medical retirement or separation as aresult of the applicant’s resignation.2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief. As a result, the Board recommends denial of so much ofthe application that pertains to any relief without benefit of the review described above. REFERENCES: 1.Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departmentswith authority to retire or discharge a member if they find the member unfit to performmilitary duties because of physical disability. The U.S. Army Physical Disability Agencyis responsible for administering the Army physical disability evaluation system andexecutes Secretary of the Army decision-making authority as directed by Congress inchapter 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 medicalretention 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: theMEB 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 afinding 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. 2.Army Regulation 635-40 establishes the Army Disability Evaluation System and setsforth policies, responsibilities, and procedures that apply in determining whether aSoldier is unfit because of physical disability to reasonably perform the duties of hisoffice, 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. Separation by reason of disability requires processing through the Integrated Disability Evaluation System (IDES). a. 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. When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. The presumption of fitness may be overcome if the evidence establishes the following: . The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. . There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. . An acute, grave illness or injury or other significant deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty b. 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. c. Paragraph 3-5 states that 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. Any non-ratable defects or conditions will be listed on the DA Form 199 (PEB Proceedings), but will be annotated as non-ratable. d. Chapter 4 (Procedures) provides in: (1) paragraph 4-4 (Commissioned or warrant officers who may be separated under other than honorable conditions): (a) A commissioned or warrant officer will not be referred for disability processing instead of elimination action (administrative separation) that could result in separation under other than honorable conditions. Officers in this category who are believed to be unfit because of physical disability will be processed simultaneously for administrative separation and physical disability evaluation. (b) Commanders exercising general court-martial authority will ensure that the foregoing actions processed together are properly identified and cross-referenced. The administrative separation will be forwarded to the Commander, USAHRC, Attention: AHRC-OPL-R, 1600 Spearhead Division Avenue, Fort Knox, KY 40122-5208. (c) The Commander, USAHRC, will refer the entire file, including both courses of action, to the Office of the SA, Attention: SAMR-RB, Washington, DC 20310-3073, for necessary review. The SA will decide the proper disposition of the case. (2) paragraph 4-10 (The MEB), MEB's are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on criteria in AR 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. (3) paragraph 4-12 (Informal Board), each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the IDES. An informal board must ensure that each case considered is complete and correct. All evidence in the case file must be closely examined and additional evidence obtained, if required. In addition, in all informal cases, the PEB Liaison Officer (PEBLO) of the medical treatment facility having control of the Soldier will be the counselor for the Soldier. As such, the PEBLO is primarily concerned with the Soldier's interests. The Soldier will be made fully aware of the election options available to him or her, the processing procedures, and the benefits to which he or she will be entitled if separated or retired for physical disability. 3. Army Regulation 40-501 (Standards of Medical Fitness) provides standards for induction, enlistment, appointment, retention, and related policies and procedures. a. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) sets forth the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for Soldiers. Paragraph 3-3 shows that Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in AR 635-40 with the following caveats: (1) U.S. Army Reserve or ARNG/ARNGUS Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 (Army Reserve Medical Examinations) and chapter 10 (ARNG) of this regulation. (2) Soldiers pending separation in accordance with the provisions of AR 600-8-24 authorizing separation under other than honorable conditions who do not meet medical retention standards will be referred to an MEB. In the case of commissioned or warrant officers, the physical disability processing and the administrative separation processing will be conducted in accordance with the provisions of AR 600-8-24 and AR 635-40. (3) Physicians who identify Soldiers with medical conditions listed in this chapter should initiate an MEB at the time of identification. Physicians should not defer initiating the MEB until the Soldier is being processed for non-disability retirement. b. Chapter 7 (Physical Profiling), paragraph 7-4 (Temporary versus permanent profiles), shows that Soldiers receiving medical or surgical care or recovering from illness, injury, or surgery, will be managed with temporary physical profiles until they reach the point in their evaluation, recovery, or rehabilitation where the profiling officer determines that Medical Retention Determination Point (MRDP) has been achieved, but no longer than 12 months. A temporary profile is given if the condition is considered temporary, the correction or treatment of the condition is medically advisable, and correction usually will result in a higher physical capacity. Soldiers on active duty and RC Soldiers not on active duty with a temporary profile will be medically evaluated at least once every 3 months at which time the profile may be extended for a maximum of 6 months from the initial profile start date by the profiling officer. Temporary profiles exceeding 6 months’ duration, for the same medical condition, will be referred to a specialist (for that medical condition) for management and consideration for one of the following actions: . continuation of a temporary profile for a maximum of 12 months from the initial profile start date . change the temporary profile to a permanent profile . determination of whether the Soldier meets the medical retention standards of chapter 3 and, if not, referral to an MEB 4. 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. 5. Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) prescribes the policies and procedures for investigating the circumstances of the disease, injury, or death of a Soldier and provides standards and considerations used in determining LOD status. It also provides the reasons for conducting LODIs, which include extension of enlistment, longevity and retirement multiplier, forfeiture of pay, disability retirement and severance pay, medical and dental care for Soldiers on duty other than active duty for a period of more than 30 days, and benefits administered by the VA. a. Chapter 2 (LOD Determinations) provides in: (1) paragraph 2-6 (Standards applicable to LOD determinations), decisions on LOD determinations will be made in accordance with the standards set forth in this regulation; (2) paragraph 2-3 (Requirements for LODI), subparagraph c, investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated, or formally where an investigating officer is appointed to conduct an investigation into suspected misconduct or negligence. A formal LODI must be conducted in circumstances involving self-inflicted injuries or possible suicide. b. Chapter 4 (Special Considerations and Other Matters Affecting LODIs), paragraph 4-11 (Mental responsibility, emotional disorders, suicide, and suicide attempts) shows: (1) The Medical Treatment Facility must identify, evaluate, and document mental and emotional disorders. A Soldier may not be held responsible for his or her acts and their foreseeable consequences if, as the result of mental defect, disease, or derangement, the Soldier was unable to comprehend the nature of such acts or to control his or her actions. Therefore, these disorders are considered "in LOD" unless they existed before entering the Service and were not aggravated by military service. Personality disorders by their nature are considered as Existed Prior To Service (EPTS). (2) LODIs of suicide or attempted suicide must determine whether the Soldier was mentally sound at the time of the incident. The question of sanity can only be resolved by inquiring into and obtaining evidence of the Soldier's social background, actions, and moods immediately prior to the suicide or suicide attempt, troubles that might have motivated the incident, and examinations or counseling by specially experienced or trained persons. Personal notes or diaries of a deceased Soldier are valuable evidence. In all cases of suicide or suicide attempts, a mental health officer will review the evidence collected to determine the bio-psychosocial factors that contributed to the Soldier's desire to end his or her life. The mental health officer will render an opinion as to the probable causes of the self-destructive behavior and whether the Soldier was mentally sound at the time of the incident. (3) If the Soldier is found mentally unsound, the mental health officer should determine whether the Soldier's mental condition was an EPTS condition aggravated by Service or was due to the Soldier's own misconduct. Those conditions occurring during the first six months of active duty may be considered as EPTS, depending on history. (4) In cases of suicide or attempted suicide during absence without leave, mental soundness at the inception of the absence must also be determined. (5) An injury or disease intentionally self-inflicted or an ill effect that results from the attempt (including attempts by taking poison or drugs) when mental soundness existed at the time should be considered misconduct. 6. Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the policies and procedures governing the transfer and discharge of Army officer personnel. a. Chapter 2 (Release from Active Duty of RC Commissioned and Warrant Officers) shows in: (1) paragraph 2-7 (Rules for processing voluntary release from active duty due to expiration of active duty commitment) that an officer not under the jurisdiction of a commander having separation approval authority will be reported to Commander, USAHRC, Fort Knox, KY, not later than 60 calendar days prior to scheduled date of release from active duty. (2) paragraph 2-29 (Rules for processing involuntary release from active duty due to civilian criminal conviction), UP Title 10, U.S. Code, section 12312, as implemented by Department of Defense Instruction 1332.40 (Separation Procedures for Regular and Reserve Commissioned Officer), a RC officer on active duty who is convicted and sentenced to confinement in a Federal or State penitentiary or other correctional institution for a period of more than one year or for a crime of moral turpitude (including, but not limited to, child abuse, incest, indecent exposure, soliciting prostitution, embezzlement, check fraud, and any felony or other offense against the mores of society), and whose sentence has become final, may be released from active duty by the Secretary of the Army or their designee. b. Chapter 4 (Eliminations) shows in: (1) paragraph 4-5 (Separation date), an officer approved for involuntary separation by the SA or his designee or whose request for resignation or discharge in lieu of elimination is approved will be separated accordingly. (2) paragraph 4-24 (Rules for processing an option that an officer elects while elimination action is pending): (a) an officer identified for elimination may, at any time during or prior to the final action in the elimination case, elect one of the following options (as appropriate): . submit a resignation in lieu of elimination . request discharge in lieu of elimination . apply for retirement in lieu of elimination, if otherwise eligible (b) When an officer submits a resignation in lieu of elimination or a request for discharge in lieu of elimination, the officer waives the right to a hearing before a Board of Inquiry, and the case will be processed without convening a Board of Inquiry. Commanders will ensure that an officer has had an opportunity to consult with counsel before waiving the right to a hearing before a Board of Inquiry. Upon final determination, the Commander, USAHRC, will forward appropriate separation instructions to the appropriate Personnel Service Center/Military Personnel Division. 7. National Guard Regulation 600-5 (The Active Guard Reserve (AGR) Program Title 31, Full Time National Guard Duty (FTNGD) Management), chapter 6 (Release from the FTNGD Title 32 AGR Program), Chapter 6 (Separation), provides in: a. paragraph 6-1 (General), AGR Soldiers within 2 years of becoming eligible for retired or retainer pay will not be involuntarily released from FTNGD unless release is approved by the SA; b. paragraph 6-2 (Medical separation), AGR Soldiers undergoing extensive medical treatment or MEB proceedings for LOD related injuries or diseases will be retained in AGR status until final disposition by medical authorities. Army Regulation 635-40 will be used to separate AGR Soldiers as a result of physical disabilities; and c. paragraph 6-4 (Mandatory separation), AGR Soldiers will be separated without Board action regardless of the expiration dates of their current periods of duty. Retention is not authorized. Separation for cause procedures need not be used. Soldiers will be given at least 30 days' notice of separation. It also shows separation is required when, in pertinent part, conviction by civilian or military authorities for a disqualifying offense under the provisions of National Guard Regulation 635-100, National Guard Regulation 600-100, National Guard Regulation 600-101, and National Guard Regulation 600-200. AGR Soldiers will not be separated UP this paragraph until final approval by The Adjutant General. 8. National Guard Regulation 635-100 (Army National Guard and Army Reserve Separation of Officers), paragraph 5 (Criteria), subparagraph a (25), termination of State appointment, provides that unless contrary to State law and regulations, the appointment of an ARNG officer should be terminated in accordance with State laws or regulations. 9. National Guard Regulation 635-101 (Termination of Appointment and Withdrawal of Federal Recognition) prescribes the criteria and procedures for determining the capacity for further service of commissioned and warrant officers for continued Federal recognition (FEDREC) in the ARNG. Section V (Resignation In Lieu Of Withdrawal of FEDREC) provides that when an officer has been notified that he is being considered for withdrawal of FEDREC, he may submit a resignation at any time prior to final action on the board proceedings. Commanders will insure that there is no element of coercion in connection with a resignation, in lieu of withdrawal of FEDREC, and that the officer concerned is allowed at least 10 days after notification of impending elimination to make a decision in cases wherein resignation is contemplated. Resignations will be submitted through channels to the State AG for action. A copy of the resignation will be appended to the separation orders issued by the State AG and forwarded to the Chief, NGB. 10. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. The ABCMR considers individual applications that are properly brought before it and begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice. The ABCMR will decide cases on the evidence of record; the ABCMR is not an investigative body. b. Paragraph 2-11, states applicants do not have a right to a formal hearing before the ABCMR. The Director, ABCMR may grant a formal hearing whenever justice requires. 11. Title 38 U.S. Code 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. 12. Title 38 U.S. Code 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//