IN THE CASE OF: BOARD DATE: 19 October 2022 DOCKET NUMBER: AR20220003484 APPLICANT REQUESTS: through Counsel, physical disability retirement in lieu of honorable discharge due to condition, not a disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s letter * Counsel’s brief * supporting evidence in excess of 200 pages, contained in exhibits labeled 1 through 23 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. Counsel states: a. The applicant joined the Army and entered active duty in January 2006, when she was 18 years old. She served honorably for almost 2 years, earning two rank promotions, and was deployed to Iraq during Operation Iraqi Freedom. In Iraq, the applicant experienced combat, and after being sent to Germany for medical evaluations, based on her medical records, she was raped by another Soldier. These traumatic events caused a severe deterioration in her mental health and her job performance. In those years, however, the military lacked the understanding it has today about mental health, especially post-traumatic stress disorder (PTSD) and sexual trauma. The Army diagnosed the applicant with dysthymic disorder [chronic form of depression] and the Department of Veterans' Affairs (VA) later clarified that she also suffers from PTSD, improperly deprived her of Disability Evaluation System (DES) processing, and issued administrative separation under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17(a) for a condition, not a disability. The impact of these traumatic events continue to create several medical complications for the applicant to this date. b. Determining that the applicant’s dysthymic disorder was a condition, not a disability that did not warrant DES referral was a mistake because of the following: (1) It conflicted with Army Regulation 635-200 paragraph 1-33, which prioritizes separation through medical channels over administrative separation processes (2) Relying on paragraph 5-17 misinterpreted its meaning. The provision applies to defects unratable by the VA and not the type of ailment afflicting the applicant, even by the Army's own diagnosis at the time. A dysthymic disorder is not a disease that can be characterized as a condition, not a disability, and thus her separation under paragraph 5-17 was inappropriate; (3) The Army's belief that the applicant’s condition pre-existed her service contradicts the evidence and Army regulations that presume fitness at the time of entry when that service member has served for longer than 30 days. c. The Anny's main mistake, however, was to fail to recognize that the applicant had no preexisting conditions. The Army also failed to recognize her PTSD. Following her discharge, the VA assessed the applicant as 100 percent disabled due to service- connected PTSD, a diagnosis with which independent clinicians have agreed. The VA also assessed her disabled at rates higher than 30 percent for other PTSD-linked ailments such as migraines and a skin condition. The applicant’s VA-assessed combined disability rating far surpasses the minimum 30 percent. d. Based on the review of the applicant’s medical and military records by Dr. and Mr. , independent clinicians at the State University Psychology Clinic, it is evident that her condition merited a rating of at least 30 percent at the time of discharge. Her disability is stable and permanent, as required for medical retirement. The VA has assessed her 100 percent disabled since 2011, longer than the five year requirement. Since the applicant satisfies the rest of the requirements for medical retirement, the ABCMR should correct her records to show that she became unfit for military service due to PTSD, and that she is medically retired with 100 percent disability. e. A healthy and accomplished youth, the applicant joined the Army with no preexisting health issues and entered active duty on 24 January 2006, at the age of 18. She served honorably until 12 October 2007. One of 3 siblings, her childhood was "normal" and "carefree.” She performed well in school, practiced ballet on the weekends, and enjoyed a rich social life. As a child, she recalls "never" being sick or suffering any injuries. She developed an interest in the military early on, an interest that grew after the terrorist attacks of 11 September 2001. Nothing in the applicant’s record indicates any mental health issues when she joined the Army. f. During her deployment in Iraq, the applicant was exposed to combat and Military Sexual Trauma (MST). In September 2006, the applicant deployed to Iraq during Operation Iraqi Freedom. She experienced the violence of war from the moment she landed, her arrival aircraft greeted by a hail of gunfire. Other traumatic incidents include a mortar attack that "blew up" the dining facility in which she was eating and rocket-propelled grenades that exploded near her barracks. After one such bombardment, the applicant recalled "sitting in the bunker shaking badly for about 30 minutes. g. Despite the difficult circumstances in Iraq, the applicant performed her duties well and was promoted, for the second time during her service, to the grade of E-3. In Iraq, the applicant started to suffer from abdominal pains. Though explanation for the pain eluded local medical personnel in Mosul, an ovarian cyst was later discovered and her ovary was surgically removed. During her trips to the hospital in Mosul, the applicant experienced more trauma, including additional bombardment and sights of severely injured soldiers and civilians. Her abdominal pains persisting without explanation, she was transported to Germany for further medical checks. While in Germany, she was raped by another Soldier. She reported the rape 6 months later during a company grade Article 15 proceeding. h. The applicant’s mental health rapidly deteriorated following the trauma she experienced in Iraq and Germany. While in the hospital in Germany, following being raped, she suffered a panic attack triggered by a hallucination of her rapist and had to be sedated. The following day, the rapist appeared in person and she suffered a second panic attack. Amongst her panic attacks and deteriorating mental health, the failure to resolve her abdominal pain prompted the applicant’s transfer to Fort Hood, TX, for further evaluation in January 2007.At this point, the applicant reported suffering from nightmares, anxiety, depression and inability to sleep. She reported to sick call and was diagnosed with adjustment disorder with anxiety and prescribed sleep medication. Over the next month, her mental health continued to deteriorate and she reported to the emergency room at Fort Hood, TX, with acute suicidal ideation and nightmares related to her deployment to Iraq. She was admitted for inpatient mental health treatment for 7 days and her condition was deemed presumptively in the line of duty (LOD). At her discharge from the inpatient treatment program, the applicant was again diagnosed with adjustment disorder with depressed mood. i. 4 months later, she continued to suffer from severe mental health symptoms and was diagnosed with dysthymic disorder, a compensable mental health condition that can support medical discharge. Based on her new diagnosis, she inquired about DES processing. At the time, the applicant’s psychiatrist, Dr. , denied DES processing because he "suspected that all of her symptoms predated military service." Dr. , however, provided no evidence to support his suspicion, nor did he consider whether her conditions were aggravated in service. Moreover, since the applicant served for longer than 30 days, her conditions should have been presumed incurred in the LOD pursuant to Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). j. A month later, on 5 July, Dr. issued the applicant a physical profile for her dysthymic disorder that indicated it existed prior to service (EPTS). The profile prevented her from "I. Carrying and firing a weapon; 2. Moving with a fighting load at least 2 miles; 3. Constructing an individual fighting position; or 4. Performing 35-second rushes under direct/indirect fire." Following the applicant’s dysthymic disorder diagnosis and Dr. refusal to submit her case to DES, her command recommended separation under Army Regulation 635-200, paragraph 5-17, based on a "condition, not a disability." The applicant was given a separation physical that indicated she was medically "qualified for service" despite the fact that her dysthymic disorder diagnosis prevented her from accessing weapons or ammunition and required follow-up psychiatric care to "discuss hallucinations and voices." She was then administratively separated. k. The applicant was assessed 100 percent disabled due to PTSD. Following her discharge, her mental health issues prevented her from resuming a normal life. She struggled to complete a college degree, and could not find or maintain stable employment. "I have been in a downward spiral of despair ever since," she reports. In 2011, she first made a claim to the VA. After first assessing her 70 percent disabled due to PTSD, the VA has since increased her disability rating to 100 percent effective 2011. She is also considered 50 percent disabled due to PTSD related migraines and 60 percent disabled due to a PTSD related skin condition. The VA also granted her a temporary disability of 100 percent for a period of recovery following ovary removal surgery (salpingo-oophorectomy) due to an ovarian cyst. l. The VA 's 2017 assessment for 100 percent disability by Dr. relied on the applicant’s "verified and corroborated account of what she experienced in the service": "There is no reason in the record to doubt [her] credibility and many of [her] historical details have been corroborated by lay testimony." He added that there was nothing in the record to imply "malingering symptom exaggeration or feigning of symptoms. The applicant's statements and complaints of [her] continuing impaired conditions are credible and heavily supported in [her] medical records." More recently, independent clinicians Dr. and Mr. of the State University Psychology Clinic reviewed her medical and military records and agreed with the VA 's assessment. After a careful analysis of each criterion for the diagnosis of PTSD-related disability, the clinicians determined that the applicant "meets criteria for 100 percent disability as a result of mental and physical health difficulties incurred during her service." m. In support of their determination, the clinicians referenced the applicant’s experiences in Iraq, exposure to violence and injury, and sexual harassment and rape. They noted the lasting impact left on her by the scenes of injury and violence she witnessed in Iraq, particularly "images of burn victims"; that her proximity to explosions caused her hearing damage; that she suffered anxiety and panic attacks, especially as a result of her rape; that her hallucinations, panic attacks and nightmares fit the description of PTSD-related flashbacks (dissociative reactions), and that she suffers from chronic sleep disorder as a result; and that she exhibits persistent depression, irritable and aggressive behavior, hypervigilance, and weak concentration. The clinicians emphasized her suicidal episode during her service for which she was hospitalized. n. The clinicians further observed that these mental impairments have had a debilitating impact on the applicant’s professionally and that she has been unable to maintain stable employment and has endured unemployment for several years; and that her PTSD symptoms, including depression and migraines, prevent her from performing reliably, meeting attendance requirements and being motivated to complete basic tasks symptoms that are also affected by her impaired memory. Similarly, the clinicians note the trauma's debilitating effect on her social life and relationships, including its impact on her marriage and ability to maintain intimacy and friendships; that she feels detached and estranged from others; that she suffers from a fear of crowds that prevents her from going shopping; that simple activities such as watching television or movies or witnessing celebration fireworks tend to cause anxiety attacks and require medication; and that due to the severity of her symptoms, she was unable to participate in an inpatient mental health rehabilitation program or attend individual therapy. Finally, the clinicians noted that the applicant’s other ailments, such as migraines and eczema, are likely caused or aggravated by her PTSD, evincing the severity of her disability. o. The Army erred by failing to refer the applicant to DES processing based on her dysthymic disorder. The Army made three main mistakes in relation to the applicant. The first was to issue her administrative separation under Army Regulation 635-200, paragraph 5-1 7(a) for a condition, not a disability, rather than providing her with DES processing as required for her dysthymic disorder diagnosis. The second was to characterize her dysthymic disorder as pre-existing. And the third was to initially fail to recognize that she also suffered from PTSD. p. The applicant’s dysthymic disorder is a compensable disability that was inappropriate for discharge as a condition, not a disability. The Army's first mistake was using Army Regulation 635-200, paragraph 5-17(a) to administratively separate her based on her diagnosed dysthymic disorder instead of referring her to DES processing. The provision provides for the separation of a service member "on the basis of other physical or mental conditions not amounting to disability… that potentially interfere(s) with assignment to or performance of duty." These are conditions, such as chronic airsickness or seasickness, dyslexia, sleepwalking, claustrophobia or "other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired." Paragraph 5-17's plain language highlights the Army's error. It enumerates a list of items with a common trait: each is a "defect of a developmental nature designated by the Secretary of Defense," unratable by the VA in the absence of an underlying ratable causative disorder. In contrast, dysthymic disorder is not a developmental defect; it is a compensable, ratable disability under VA Diagnostic Code 9433. Therefore, the Army should have referred the applicant to DES processing. q. Even if the applicant had some non-compensable condition in addition to her compensable dysthymic disorder, the Army erred in its application of Army Regulation 635-200 in two additional ways. First, it failed to heed its own policy that disposition of separation actions "through medical channels takes precedence over administrative separation processing." Second, it ignored the requirement under both Federal case law and Army Regulation 635-200 that, prior to being separated on the basis of a condition, not a disability, the injury or condition being considered for administrative separation must first be determined not a disability. The only authority capable of determining whether a condition is a disability is a Physical Evaluation Board (PEB). Since the applicant was never provided DES processing, the Army erred in finding her dysthymic disorder to be a condition, not a disability before referring her into DES for a determination via a PEB as to whether her dysthymic disorder was a disability. r. The applicant’s dysthymic disorder was incurred or aggravated in the LOD. The Army's second mistake was to fail to refer her into DES based on an erroneous belief that her dysthymic disorder was pre-existing. This was incorrect for three reasons. First, it ignored Anny Regulation 635-40, paragraph 5-1 l(a-c): (1) The PEB will presume Soldiers... on continuous orders to active duty specifying a period of more than 30 days, entered their current period of military Service in sound condition when the disability was not noted at the time of the Soldier's entrance to the current period of active duty. (2) The PEB may overcome this presumption if clear and unmistakable evidence demonstrates that the disability existed before the Soldier's entrance on their current period of active duty and was not aggravated by their current period of military Service. Absent such clear and unmistakable evidence, the PEB will conclude that the disability was incurred or aggravated during their current period of military Service. (3) The PEB must base a finding that the Soldier's condition was not incurred in or aggravated by their current period of military Service on objective evidence in the record, as distinguished from personal opinion, speculation, or conjecture. When the evidence is unclear concerning whether the condition existed prior to their current period of military Service or if the evidence is equivocal, the presumption of sound condition at entry to the current period of military Service has not been rebutted, and the PEB will find the Soldier's condition was incurred in or aggravated by military Service. s. The record contains no evidence that these presumptions were properly applied and rebutted. Nor does it contain anything to suggest that her mental health condition was pre-existing; no physical or mental disabilities were noted or recorded at the time of her entry into the Army, and the applicant had no mental health issues during her first year of service. In fact, the record supports that the applicant had no pre-existing conditions upon entering service and that her disability did not arise until she had been on orders for over a year. She was promoted twice during her service, the second time when she was in Iraq. Behavioral and performance issues only surfaced later in her service, after her return from Iraq and Germany, and after she survived MST. A character statement by a fellow Soldier states, “Prior to deploying I observed [the applicant’s] actions as being normal ... [she] became sickly several months after we deployed… My opinion is that [the applicant] was having issues because of her bad nerves from all the incoming fire we had ... I saw a big difference in the attitude of [the applicant] once deployed; you could tell she was not the same soldier as in the rear.” t. Dr. and Mr. further noted that the Army psychiatrist provided no evidence, objective or otherwise, that supported a diagnosis of pre-existing dysthymic disorder: It is unclear why Dr. did not account for her prior exam, which indicated that she did not have any mental health diagnoses at the time she began her service. No other known records exist to support the existence of dysthymic disorder prior to service, and Dr. does not provide any appreciable evidence supporting this claim. Further, the applicant clearly meets criteria for PTSD due to trauma experienced during her service. Even if the applicant had experienced some trauma before her service, the additional trauma she experienced during her service would have service- aggravated her mental health condition in the LOD. Under Army Regulation 635-40, paragraph 5-11 (d), "any aggravation of ... disease, incurred during the Soldier's current period of active duty, beyond that determined to be due to natural progression, will be determined to be service aggravated." Given that the military did not diagnose the applicant with any pre-existing medical conditions during her entrance examinations, and given her satisfactory performance went well into her service with no mental health issues until after her deployment and rape, her mental health issues were at the very least aggravated by her service. u. In addition, the applicant's records also support a finding that aggravation of her dysthymic disorder was permanent. These include that the applicant was and continues to be rated at a 100 percent static, service-connected disability due to PTSD, a 50 percent disability rating due to related migraines, and a 60 percent disability rating due to a PTSD-related skin condition. Like the VA's doctors, independent clinicians arrived at the same conclusion: the applicant suffers from compensable disabilities caused by the trauma she experienced during her service. v. The third sign that the Army erred in determining that the applicant’s dysthymic disorder was pre-existing was the Anny's initial diagnosis of the applicant with adjustment disorder. Adjustment disorder involves "the development of emotional or behavioral symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s)." A key difference between adjustment disorder and PTSD is the severity of the stressor, where adjustment disorder involves stressors not rising to the severity of PTSD. Just prior to her diagnosis of adjustment disorder, the applicant was in the military on active duty orders in Iraq. In this sense, the Army's initial diagnosis for adjustment disorder was appropriate, except it belittled the extent of trauma she underwent and its impact on her. As the VA and independent clinicians later determined, the psychological harm was severe and meets the criteria for PTSD. w. The applicant also suffered from unfitting service-incurred PTSD which required referral to the PEB. The Army failed to recognize that she also suffered from duty-limiting PTSD at the time of her discharge. PTSD is a mental disorder under VA Diagnostic Code 9411. The VA diagnoses of mental disorders are based on the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition ("DSM"). In its 2017 memorandum, the Secretary of Defense encouraged BCMRs to apply " liberal considerations ... to applications ... related to mental health conditions, including PTSD, and reported or unreported sexual assault experiences." The memorandum warns that “… it is unreasonable to expect the same level of proof for injustices committed years ago when ... mental health conditions, such as PTSD; and victimology were far less understood than they are today ... when there is now restricted reporting, heightened protections for victims, greater support available for victims and witnesses, and more extensive training on sexual assault and sexual harassment than ever before. x. The applicant's record, in fact, presents far more evidence of PTSD than appears necessary to meet the "liberal considerations" standard recommended by the Secretary of Defense. Moreover, her VA assessments and independent clinicians’ records review both agree that the applicant is 100 percent disabled because of PTSD. The VA's 2017 assessment for 100 percent disability by Dr. relied on the applicant's "verified and corroborated account of what she experienced in the service": "There is no reason in the record to doubt [her] credibility and many of [her] historical details have been corroborated by lay testimony." Nor is there anything in the record to imply "malingering symptom exaggeration or feigning of symptoms. The applicant's statements and complaints of [her] continuing impaired conditions are credible and heavily supported in [her] medical records." Dr. and Mr. noted that the applicant was exposed to actual or threatened death, serious injury, and sexual violence during her service, and that she suffers from multiple intrusion symptoms associated with, and beginning after, those traumatic events. In fact, they found that she exhibited all five intrusion symptoms defined by the DSM: recurrent, involuntary, and intrusive distressing memories of the traumatic events; recurrent distressing dreams in which the content or effect of the dream are related to the traumatic events; dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic events were recurring; intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic events; and marked physiological reactions to such cues that symbolize or resemble an aspect of the traumatic events. y. The clinicians similarly found strong evidence that the applicant has exhibited persistent avoidance of stimuli associated with the traumatic events; negative alterations in cognitions and mood associated with the traumatic events; and marked alterations in arousal and reactivity associated with the traumatic events. They concluded by finding that she has suffered these symptoms for more than 1 month, the minimum period required for a PTSD diagnosis, and that the disturbance causes clinically significant distress or impairment in social, occupational, and other important areas of functioning. In support of their determination, the clinicians referenced the applicant’s experiences in Iraq, exposure to violence and injury, sexual harassment, and rape. They noted the lasting impact left on her by the scenes of injury and violence she witnessed in Iraq; that she is especially "haunted by burn victims"; that her proximity to explosions caused her hearing damage; that she suffered anxiety and panic attacks- especially as a result of her rape; that her hallucinations, panic attacks and nightmares fit the description of PTSD caused flashbacks (dissociative reactions), and that she suffers from chronic sleep disorder as a result; and that she exhibits persistent depression, irritable and aggressive behavior, hypervigilance, and weak concentration. The clinicians emphasized her suicidal episode during her service for which she was hospitalized. z. Given the extent of the applicant's disability, she became unfit to perform her role as an Automated Logistical Specialist. Signs of her PTSD-related dysfunction already began to surface during her service, leading to a company grade Article 15 proceeding imposed for failures to report, and ultimately, her separation. The Army’s determination that she was medically qualified was erroneous, and in fact, contradictory to the physical profile it issued finding her unfit to perform basic soldier tasks. It also contradicted its dysthymic disorder diagnosis and instruction for follow-up psychiatric care to "discuss hallucinations and voices." The Army’s main error, however, was to fail to recognize that PTSD was the cause of her unfitness. aa. The applicant's dysthymic disorder and PTSD were unfitting for continued service. The Army then issued her a new physical profile that prevented her from the following: (1) Carrying and firing a weapon; (2) Moving with a fighting load at least 2 miles; (3) Constructing an individual fighting position; or (4) Performing 35-second rushes under direct/indirect fire bb. Despite the diagnosis and physical profile, the Army deemed her medically "qualified for service" and placed her on administrative separation. Not only was placing the applicant on administrative separation incorrect, given that she was medically unfit and that " [t]reatment efforts have failed to achieve the goal of full fitness for duty," the Army should have referred her to a medical evaluation board ("MEB"). An MEB would have determined that the applicant does not meet retention standards due to her dysthymic disorder and PTSD and referred her to a PEB. cc. The applicant's dysthymic disorder and PTSD should have merited a 100 percent disability rating, but no less than 30 percent. She is 100 percent disabled due to PTSD. Had the applicant been referred into DES and the PEB correctly identified her dysthymic disorder and PTSD to be an unfitting disability, she would have been granted a 100 percent disability rating. When a PEB determines a Soldier to be unfit for continued service due to physical disability, it assigns a disability rating using the VA’s Schedule of Rating Disabilities (VASRD). The ratings range from 0 percent to 100 percent based on the degree of impairment caused by the condition. The PEB may not diverge from the VASRD except to assign a higher disability rating than that required by the VASRD. 100 percent disability is characterized by "total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name." dd. Dr. , Mr. , and the VA doctors all believe the applicant is 100 percent disabled due to her service-connected PTSD. In support of their disability rating the clinicians referenced her inability to maintain employment; her significant "social difficulties in her work and personal life"; her trauma related hallucinations and the disruption they cause to her sleep; her aggressive and inappropriate behavior; her impaired ability to maintain a schedule, difficulty with memory, and the effect these have on her "everyday life.” ee. At the least, the applicant’s records should show 30 percent disability. If the ABCMR determines that Ms. is not 100 percent disabled, it should at least grant that she is 30 percent disabled. 30 percent disability is characterized by "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events)."Unemployed for several years, the applicant’s occupational impairment is significantly more severe than "occasional decreased in work efficient and intermittent periods of inability to perform occupation tasks." She does not "generally function satisfactorily" and exhibits "depression, anxiety, panic attacks, chronic sleep impairment and mild memory loss.” ff. The applicant’s disabilities are permanent and stable and she meets the requirements for medical retirement. She meets the remaining criteria for medical retirement. Her disabilities were incurred in the LOD while she was entitled to basic pay, and there are no indications that they are rooted in intentional misconduct, willful neglect or unauthorized absence. The applicant’s disabilities were and are of a permanent nature and stable. A disability is "of a permanent nature and stable" when (a) "it has become stable so that, with reasonable expectation, the compensable percentage rating will remain unchanged during the following 5- year period" or when (b) the compensable percentage rating is at least 80 percent and the disability "will probably not improve so as to be ratable at less than 80 percent during the following 5 years." The applicant's medical records and VA rating decisions corroborate that her PTSD is not temporary and expected to decrease in severity within 5 years. The VA assessed the applicant as disabled due to her PTSD effective 2011 with consistent 100 percent disability ratings since 2018. gg. The applicant respectfully requests that the ABCMR correct her military records to show that she would have qualified for medical retirement at the time of her discharge on 12 October 2007. Medical retirement is warranted due to service-incurred PTSD and dysthymic disorder that rendered her unfit to continue to serve with a 100 percent disability rating. At the least, the ABCMR should either grant the applicant a medical retirement with at least a 30 percent disability rating or refer her to DES processing so that her injuries could be correctly evaluated by a PEB- as would have been proper prior to her discharge. hh. In light of the better understanding the military possesses today about mental health and sexual trauma it should correct an injustice of a previous era. The applicant served her country honorably, and in doing so, suffered permanent trauma. In separating her on administrative basis due to her compensable disability and depriving her of correct procedures, the military committed an injustice and error. The applicant respectfully requests the ABCMR to correct this error and injustice through correction of her records, and that it grant her medical retirement. 3. The applicant states: a. She was born on , in , the second of three children born to her biological parents. Her childhood seemed normal and carefree to her. In elementary school she performed well academically, and participated in ballet on weekends. She had friends who lived in her neighborhood during that time, and they spent much of their time playing many different sports, board games, riding bikes, and exploring the outdoors. She also had a few hobbies during those formative years. For instance, she collected Pokémon cards, loved the outdoors, play video games every now and then, but mostly loved board games. She was never sick, never had any broken bones, and was pretty much healthy. She remembers my mother being very protective of her. She always made sure she was safe and not surrounded by trouble. It all seemed pretty normal to her. b. During high school she was actively involved in an environmental club, and was also in advanced classes. The club and the extra work from the advanced classes it consumed a lot of her time. She also discovered boys, and along with her friends they would do a lot in order to impress them. Also, during this time she expressed a lot of interest in the Armed Forces right after the 9/11 incidents, especially the Army. She loved the uniforms, the courage the soldiers had and was motivated on how strong and self-discipline they all were. She was young and impressionable. Her thinking at the time was that if she could join the Army it would be easy to get a better job, and also make a career out of it. Since she loves the outdoors it would be also a good experience to travel around the world. Because her parents were protective of her, they didn't like the idea of her joining the Armed Forces. All they could see was the word war. Therefore, she continued her studies in high school, graduated with honors, and started college. During summer; working in her summer job she decided that it was time to join; however she knew that she had to wait until her 18th birthday because her parents didn't approve of her decision. During college, she met with an Army recruiter who pointed out all of the positive aspects of the Army and she was hooked. Despite her parents disapproving, they understood her reasons for joining and , she joined the Army. c. In December 2005, she enlisted in the U.S Army as a means of seeking gainful employment, making a career out of it, fighting for her country, and traveling the world. She completed boot camp at Fort Jackson, SC. She thought boot camp was pretty easy. Although physical training (PT) was hard, she actually got better at it and felt strong and fitter. She was always paying attention to detail and did well academically in school, so boot camp was easier than she anticipated. After boot camp, she attended Advanced Individual Training (AIT) to train for her Military Occupational Specialty (MOS) 92A (Automated Logistics Specialist). After 6 weeks of AIT, she was much better at PT, was part of the flag detail; which she felt proud of, learned everything that needed to learn, and was ready to be at her new assigned base. d. After AIT, she arrived at her assigned base of FT Hood, TX. Unlike herself, as she only received the basic and AIT training, her new unit had already trained and prepared for deployment. A month later she got orders to Iraq. She arrived in Iraq in September 2006. She was actually excited that she finally get to travel. She wasn't afraid because this was her duty. When she got there, her initial impression was complete shock. The place smelled bad, looked bad, and seemed dirty and dusty. As soon as she got settled in with another roommate her roommate started to bring multiple black male Soldiers to their hooch expecting that her roommate would sleep with one of them and she with the other. Knowing that she had a boyfriend at the time and she was married as well, she disregarded this. She didn't let her know at the time, but it made her uncomfortable and was not what she was expecting during the time that she would be there. One of the black male Soldiers started to approach while her roommate started to have sex with the other. She advised him to kindly step away because she didn't want to. He kept leaning on her and in fury and fear she pushed him, screaming for the two males to get out of the room. Her roommate was furious because she ruined her good time and she told her what the other male Soldier had done, but her roommate didn’t take her safety into consideration at all. e. She realized then that she had to be more careful, not just fighting this war but with her own brothers and sisters in arms. She started looking back everywhere she went when walking from the room to the bus stop, taking short cuts to avoid black males because they would constantly harass her and follow her as she walked. She also stared to isolate from anybody that she knew because she no longer felt safe. Her roommate also kept inviting more males to their room. Feeling uneasy, startled and uncomfortable, she made a curtain for privacy and rearranged her room to avoid seeing them as they came in. At times, there would be males dropping by without her roommate being there or they would be in there after she returned from work. She had to basically force herself out of the room because she didn't feel safe being there by herself with people that she didn't know. She started to become more aggressive towards people, lacking sleep, and started to get acne because of the anxiety she was experiencing. f. Due to being new in her unit, she didn't want to “screw” her career. She came to the Army as an E-1 and was promoted twice, once overseas for her performance in the warehouse and how quickly she learned the system. The customers who came in the warehouse loved how efficient she was and how quickly she solved the problems. She was never sitting during work, always doing something and kept her area as well as others neat and organized. If her job was done, she was eager to learn another area in order to help during rush hour times. However, despite all this hard work; she felt that if she said something about my roommate's behavior with other Soldiers and the harassment that she would lose everything that she worked so much for, which was getting close to being promoted to an E-4. g. She started to experience severe abdominal pains that came with no warning. She couldn't perform PT like she used to and started to feel depressed due to the lack of performance during PT. She went from not being able to do a single push up, to finally being able to do them, then with the abdominal pain coming with no warning even that push-up or sit-up was a difficult task. She never got sick, was always healthy until the abdominal pain started with no warning one day while doing PT. She had to travel to Mosul, a more hostile base to get further medical attention. While there she experienced incoming mortar fire. Mortars were dropping in everywhere to include in the airfield. The sound was loud and the smell was horrible. She remembers sitting in the bunker shaking badly for about 30 minutes because she was there alone for medical issues. It was the first time she felt scared in her whole life. Because she had to visit the hospital frequently and the area was hostile she frequently saw people burned, to include a kid's face. She couldn't get the images out of her head of all of these civilians and Soldiers severely burned. She would never forget the boy whose face was burned and smiled at her as she walked by to her doctor's appointment. h. Furthermore, the doctors were unable to do anything and advised that she was to be flown to Germany for further evaluation to see if she had a hernia, endometriosis, or a cyst that was causing the extreme pain in her abdomen. In January 2007, she was flown to Landstuhl Regional Medical Center in Germany for surgery. Even though she was in pain, she was again somewhat excited to travel to another country. However, this time she was more afraid than excited because her unit sent her there alone. Due to her past experiences with male Soldiers, she didn't know how all this was going to go. While traveling, she met with a lot of injured Soldiers. Some wounded Soldiers were missing limbs, others in critical condition. She felt helpless as she knew she didn't belong there, but belonged with her unit doing my job and serving her country or at least helping the medics provide proper care for the wounded, even though she was not a medic just another patient. i. While in Germany, she was raped by another Soldier she didn't even know. The day of the surgery, before being brought to the room, she woke up screaming, panicking saying: "Please no get him away, he's here." Even though the Soldier that raped her wasn't there, she could see him standing just as he was before he raped her. Nurses had to sedate her in order to calm her down. After being brought to the recovery room, the same Soldier that raped her came to visit her after surgery, causing her to have another massive panic and anxiety attack. She tried then to speak out to the doctor in charge that was trying to calm her down. She was running out of breath and her chest was very tight. Without realizing that the Soldier was the aggressor, the doctor kicked him out because they had to a computed tomography (CT) scan to make sure that she was okay. The CT scan showed nothing. Out of shame, fear of retaliation, once again she didn't say anything to the superiors there while she was staying in Germany. j. She was flown back Stateside for recovery after her surgery in hopes that whatever was causing the pain was resolved by the surgery. She isolated completely from everyone in her rear detachment unit once she returned Stateside. All she was thinking about was going back overseas with her unit and finishing her deployment, and her duty as Soldier. She felt unsafe without the people that she knew from work because it was only there that she felt at ease. Due to the meds that she was on and everything that she encountered while she was over there, she felt depressed, isolated from everyone in the rear-detachment. She experienced very low energy, had a short temper, and would get mad very quickly. In addition, she was easily startled, had hallucinations from the people that she saw burned, had anxiety attacks and panic attacks to the point where she would wake up from her nightmares screaming and had extreme migraine headaches. Her aggression didn't get any better, especially around black male Soldiers. She started to see all of them as a target. k. When attempting to go and see the doctors, her superiors in my rear detachment unit would advise me that PT was more important. At the times that she was able to go see the doctors, she would complain of having very low energy, lack of sleep, lower back pain, skin issues, and her abdominal pain never went away. She started to get written up on several occasions because she didn't not get out of bed for PT or showed up late due to the medications she was prescribed for sleep, nightmares, and mood. Sometimes she slept almost all day during days off and sometimes she could not sleep for days due to all the nightmares and hallucinations. She also was unable to concentrate on the duties that were given to her. The same job duties she could once do efficiently now seem impossible to complete. She would fall asleep on the job due to her very low energy. When getting written up, she would receive low marks because she failed to stay focused on the tasks she was assigned. l. A few months after returning from overseas, she started to experience sexual harassment yet again from one of her fellow members in the rear detachment unit. This time, when she spoke about it she got counseled for it and the black male Soldier never got in trouble for the harassment. She did not make an official report about the rape that happened in Germany either because she felt that her rear detachment unit was beginning to retaliate against her for the first report she made. Instead, she began showing up late to duty, disobeyed orders from her commanding officers, and even attempted to take her own life, resulting in a suicide watch in which she had to be hospitalized for 1 week. Even with the problems she was facing not only physically but mentally, no one bothered to help her, but instead just kept on counseling her due to showing up late for PT or at work. Her superiors knew she had profile that allowed her to show up at a certain time due to the medications she was taking. However, her squad leader kept on counseling her and writing her up despite of the proof of paperwork; which later on caused her to receive nonjudicial punishment (NJP) under an Article 15 complaint for my behavior and she lost the rank that she worked so much for. m. During the Article 15 meeting, 6 months after the rape, she finally explained to the sergeant major in a cry for help what had happened in Germany. However, speaking out didn't change the punishment for the Article 15, and she was only advised to go to the Military Police (MP) with no support at all. After reporting the crime to the MP's, she was threatened with them telling her boyfriend because they said that she was lying. She felt as though she were the bad person, and doing something wrong. The report was never completed. Later on, she was threatened with discharge from her unit and supposedly the sergeant major in whom she confided everything about the assault advised the doctor to start the process to chapter me out behind her back. n. Her family and friends told her that she was acting differently, seemed removed, distant, and not interested in simple activities such as talking, going to movies or even the mall. Since he [her boyfriend] never found out about the incident, the few times they saw each other it became extremely difficult to act normal, when in reality she was breaking apart on the inside, didn't want to be near him or anyone, and just wanted to be left alone. Their relationship ended months later due to her lack of trust, her detachment from him, shame and guilt, in addition to the distant emotion due to the events that happened during service. In the end, the doctors and unit work toward getting her discharging out of the military without providing her much help. She was honorably discharged on 12 October 2007, with dysthymic disorder. As a result of her service, she struggled and continued to do so daily from survivors' guilt, and shame due to the military sexual trauma. Some of her buddies were injured in combat and she, for the most part, incurred no major injuries and didn't finish her tour. She experienced many life threatening situations and egregious scenarios while in the combat zone of Iraq and she thinks about those events constantly. o. When she left Iraq and Germany and flew back to the States, she remembers being relieved and at the same time feeling very depressed, extremely anxious, and angry. She was somehow glad to leave the place where she no longer felt safe from her fellow comrades and where she saw horrible things that no one should be subjected to. She was extremely sad as well. She was sad that maybe some of her buddies would never be returning to their families, and she was really sad knowing that she was leaving some of her buddies in harm’s way. When she got back to the States, she was furious. People called her a drama queen, scaredy-cat and “whore.” People who knew nothing about the war or what had happened to her thought she was a coward and it made her very angry. p. As a result, she found that she could not tolerate being around people, not even her own family or close friends. Strangers who knew she served my country treated her differently. Her family treated her like she had a disease and said, “I told you so.” They were afraid to talk to her, and when they did muster up the courage to talk to her they always seemed to say the wrong thing. She would go to bed angry and afraid most nights. She felt angry, depressed, restless, hopeless, and anxious that her military experience in Iraq had caused many problems for her. She was often afraid to go to sleep because of the nightmares of Iraq and the event in Germany scared her badly, to the point her anxiety was present every day, to include thoughts of self-harm. Her brain cannot tell fact from fiction and when she has dreams about Iraq it's like she’s there re- living those horrible moments she experienced in Iraq. Today, she finds herself checking her windows, making sure all doors are locked, and checking under her bed for intruders. She stays inside for most days and doesn’t like the outdoors like she used to. She learned those skills in the Army, but her family and friends seem to think she has lost her mind. They call her paranoid. q. Also, since she separated from the Army she has had a very difficult time sustaining employment. She first worked for the dispatching company, but was let go because her supervisor thought she was "unreliable, had behavior issues, and was often aggressive." She later worked at another customer service agency, but they too let her go. They said she had a temper that was out of control, missed too much work, was aggressive, and couldn't focus at work. With each job she gets, she was able to perform her duties and responsibilities well for a period of time, however, would then fail to show up for work because she felt unable to get out of bed due to my migraine headaches that follow her nightmares and anxiety and all the medications that she was on. She would also get in trouble for showing up late or not showing up at all, being indecisive, not getting along with others, and being unfocused. r. To earn a living, she went to school to further her education. However, even though the college was online it was extremely difficult for her to concentrate or stay focused. She managed to finish but had no luck in finding a job due to her intense isolation or lack of focus when the employer asked for something in order to get a job. There was a stage where she would reach out to other people and make friends that also included performing well at work. These stages would be followed by times when she was unable to sleep or slept too much and was too sad and uninterested in life or anything to initiate those relationships that she previously attempted to start. As a result, she hasn’t worked in nearly 5 years and has only 2 friends with whom she tries to keep in contact regularly. She has been in a downward spiral of despair ever since. s. Her marriage is fair at the moment. During intimacy there are many moments where she has panic attacks that come without warning. She often shakes uncontrollably when having anxiety attacks. When she’s sleeping, she wakes up from her nightmares either screaming, sweating, or crying uncontrollably. This has put a strain on their relationship and marriage. Her sexual desire is minimal or zero and it causes problems between her and her spouse. Flashbacks don't come with a warning either and at times she feels embarrassed explaining what is going on to her spouse. She feels very angry and ashamed at times at herself for what happened. She does have good hours and days, which she appreciates more than words can say. She often feels as if she’s missing out on life, her marriage and her son's life due to the events that she experienced while in the service. This is not even mentioning the abdominal/pelvic pain would flare up without notice, causing a strain during intimacy as well as in everyday life. She isolates herself every day to the point that she feels like she is punishing them for not enjoying life. She avoids big crowds and tends to go shopping at specific hours of the day to avoid people or simply doesn’t go at all. t. When it comes to sleep, it is rare due to the fear of what awaits: nightmares, anxiety, and especially the sense of not being in control. There are many movies or TV shows that she can no longer watch like she used to. She would get flashbacks and /or panic attacks so bad that she would have to turn the TV off, causing an argument. She suffers every day from memory problems since leaving the service and it is a constant struggle to keep up with the routines of everyday, including remembering self-hygiene, remembering if medication was taken, remembering to start and finish chores, remembering appointments and important events (e.g. birthdays, anniversaries etc.) to include remembering some of my relatives’ names, and more. u. She went to the VA after being discharged from the Army to seek help for her mental anguish. She was informed that I may have PTSD/MST. The psychological impact of the war experiences and the MST may have led to the many negative psychological issues and cognitive distortions that she has struggled with since departing Iraq as well over the years. She currently participates in individual PTSD therapy with a private doctor, and she takes many medications that are barely helping with my anxiety, mood, depression, skin disorder, nightmares, and pain. The medications were changed recently to see if the changes would better help with her nightmares and severe anxiety. 4. A DD Form 2808 (Report of Medical Examination) shows the applicant underwent medical examination on 16 December 2005 for the purpose of Regular Army Enlistment. The form annotates spinal deviation, but shows she was found qualified for service with a physical profile rating of “1” in all factors. No mental health conditions are referenced on the form. 5. The applicant’s available service records, to include her Enlisted Record Brief (ERB) and DD Form 214 (Certificate of Release or Discharge from Active Duty), do not contain the specific dates of her deployment to and redeployment from Iraq. 6. A Standard Form 600 (Consultation Sheet) shows on 25 January 2007, the applicant had a phone consultation with an individual at Darnall Army Medical Center (DAMC), Fort Hood, TX, in an attempt to obtain an appointment for 2-week long abdominal pain and she requested a physical profile. She stated she had previously been seen for her abdominal pain, but did not know the cause of the pain and her unit required a physical profile to limit her PT. The form shows there were no available same day appointments and she was instructed to continue to call to check for available appointments. 7. A Standard Form 513 (Consultation Sheet), shows on 26 January 2007, the applicant was seen for sick call at the Thomas Moore Clinic, DAMC on the date of the form. The complaints and findings show the applicant was medically evaluated from Iraq for medical problems. After assessment by a care manager, it was determined she needed to have a medication evaluation for sleep medication. The applicant reported being exposed to battle/mortars and was having a problem with nightmares and couldn’t sleep. An assessment for sleep medication was requested and the applicant was given a provision diagnosis of adjustment disorder with anxiety. The document does not contain a doctor’s signature. 8. Emergency Care and Treatment records show the following: a. On 20 February 2007, that applicant was treated at the emergency room (ER) at DAMC at 0608 for suicidal ideation. b. The applicant considered a suicide attempt with a knife that morning, but stopped and called a friend then was transported by personally owned vehicle to the ER. She indicated a current desire to die, that she had made a prior suicide attempt, and that she had a history of depression, and she was the impetus of her presentation at the ER. c. The Circumstances section of the form further shows the applicant was recently deployed. She had a history of depression at the time of her entry into the Army 1 year ago and no treatment since her enlistment. d. She complained of depression related to deployment (bombs, hospital mortars) and nightmares. She also complained of constant abdominal pain for the past 6 months. e. The Emergency Department Course/Medical Decision Making section of the form shows she had a history of depression, prior suicide attempt with suicidal ideation and plan. Also nightmares related to deployment to Iraq and abdominal pain for 6 months. The abdominal pain was previously evaluated by CT scan, lab work, laparoscopy. Pelvic exam and “genprobe” urine specimen tests were done in the ER. 9. A Standard Form 600, dated 27 February 2007, shows the following treatment notes from January 2007 through February 2007: a. A note from 3 January 2007 shows that an order for a transvaginal ultrasound was ordered at Landstuhl Regional Medical Center (LRMC) for the applicant due to right lower quadrant (RLQ) abdominal and pelvic pain persisting for 3-4 months; rule out ovarian torsion and other ovarian pathology. The resulting impression annotated on 27 February 2007, was unremarkable pelvic ultrasound. b. On 7 February 2007, the applicant underwent CT scan of the abdomen/pelvis with contrast to determine the etiology of her chronic abdominal pain after having had a normal pelvic ultrasound and laparoscopy at LRMC. The resulting impression was large fluid-filled lesion in the lower pelvis, most likely representing a right ovarian cyst. c. On 15 February 2007 she underwent pelvic ultrasound and the impression was complex cystic lesion of the right ovary. Given the absence of appreciable vascularity, the diagnosis favored benign proteinaceous or hemorrhagic cyst. Low grade neoplastic process less likely, particularly given report of prior negative pelvic ultrasound and laparoscopy. May consider follow-up pelvic ultrasound in 6-10 months to ensure resolution of this lesion. d. The applicant was seen on 22 February 2007 for abdominal pain and to rule out IBS. The notes show the applicant had been air evacuated from Iraq to LRMC with vague, diffuse abdominal pain, with a negative workup including pelvic ultrasound, CT scan, Pap, and labs. The applicant had availability of Percocet, but didn’t appear to be med-seeking. She was to be going back to Iraq despite no etiology of pain found. She was admitted to Ward 5E due to depression and suicidal ideation experienced over the past month and had pain for the several months. She appeared very concerned for etiology of pain, however the doctor didn’t feel she was making it up or malingering. He would think she would be willing to return to Iraq if she knew the etiology (source of pain wasn’t going to kill her or further injury her in Iraq), could get rid of the pain, could be treated for pyramided depressive symptoms. e. The applicant was seen at the Gastroenterology Clinic at DAMC on 27 February 2007 due to abdominal pain, to rule out irritable bowel syndrome (IBS). The doctor’s notes show the applicant had a months’ worth of abdominal pain and a change in her stools. She developed left lower quadrant (LLQ) abdominal pain that was colicky in nature and frequent in its presentation. It occurred almost daily lasing an hour or so at a time and relieved sometimes with stool passage. Her discomfort was worked up by Obstetrics/Gynecology (OB/GYN) and found to have a hemorrhagic cyst, but it was not present at the firs appointment, but the second. 10. The applicant’s service records contain multiple DA Forms 4856 (General Counseling Form), reflecting she was counseled on the following dates for the following reasons: * on 13 April 2007, for being absent from 0630 accountability formation on 13 April 2007 * on 23 April 2007, for being absent from 0730 accountability formation on 23 April 2007; she indicated she disagreed with the counseling as she could not go back to formation while throwing up * on 24 April 2007, for being absent from 0630 accountability formation on 24 April 2007; she indicated she disagreed with the counseling as her medication prevented her from making the accountability formation * on 29 May 2007, for being absent from 0630 accountability formation on 29 May 2007 and missing a scheduled SAMMS-E operator course at 0830 that same day * on 30 May 2007, for forgery of a sick call slip, changing her quarters from 24 hours to 72 hours, which was confirmed with the doctor that he did not change; she indicated she disagreed and stated she did not make a change to the sick call slip 11. A Standard Form 600, dated 20 June 2007, shows the applicant was seen by Dr. , Chief, Outpatient Psychiatry Service, DAMC on 20 June 2007. The notes show the following: a. The applicant was newly pregnant and consented to weaning off Zoloft and to discontinue due to pregnancy. In February 2007 the applicant was admitted to Ward 5E for overdose, chronic childhood abuse by male family members, associated trust problems and affective instability, interpersonal problems, poor impulse control (recent fracture of right hand after punching wall). She was being seen on referral from Dr. for follow-up after that physician is leaving the clinic. b. Dr. reviewed all of the treatment notes and interviewed the applicant for 45 minutes. The applicant’s history includes 17 months’ time in service and was air evacuated for abdominal pain of unknown etiology after 4 months of warehouse duty in Iraq on a forward operating base with no combat duty. c. The applicant was asking about an MEB for PTSD and the doctor did not see justification for that. In fact, he suspected that all of her symptoms predated military service. She had a dilemma in that her fiancé, a Marine in California, was then backing out of their engagement and wanted the applicant to get an abortion. The applicant had mixed feelings, and they decided for the safety of the fetus to ween her off Zoloft. d. They discussed administrative separation regulations, fitness for duty regulations, and criteria for MEB referral (which was not met in his view), as well as other treatment options. She scored 18/36 on PRIME MD depression screening scale with no current suicidal ideation in light of the pregnancy and hope for the future (she has had chronic suicidal ideation over the years0.All of this may represent somatoform pain, if the medical work-up is negative. There were no urgent safety concerns or need for readmission. She was to follow-up with him again in 2 weeks. Her psychological symptoms wee consistent with cluster b personality traits, chronic dysthymia. 12. A DA Form 3349 (Physical Profile), shows Dr. issued the applicant a temporary physical profile rating of “3” in factor S (Psychiatric) due to dysthymic disorder, EPTS, the temporary profile was due to expire on 5 October 2007. The form further shows the applicant had EPTS chronic depressed mood. She should not have access to weapons or ammunition. Administrative separation under the provisions of Army Regulation 635-200, paragraph 5-17 was recommended. 13. A DA Form 3822-R (Mental Status Evaluation), shows the following: a. The applicant underwent a mental status evaluation by Dr. on 5 July 2007, for the purpose of discharge under the provisions of Army Regulation 635-200, paragraph 5-17. b. Her mood or affect was depressed. She was found to have the mental capacity to understand and participate in the proceedings and was mentally responsible. She was not found to meet the retention requirements of chapter 3, Army Regulation 40-501. c. Her diagnosis is listed as dysthymic disorder, EPTS. She was evaluated after discharge form the inpatient psychiatry ward, where she spent 1 week in February 2007 for treatment of depression with suicidal ideation. In the doctor’s opinion, she should be expeditiously administratively separated from the service and prevented from access to weapons or ammunition. d. Her condition was deemed compatible with successful military service, rehabilitative transfer, or reclassification. Treatment efforts have failed to achieve the goal of full fitness for duty. She should continue treatment ant the Rest and Rehabilitation Center pending discharge. This condition was EPTS. There was no indication for MEB referral. 14. A DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), shows the following: a. NJP under Article 15 of the UCMJ was initiated on 5 July 2007, based on the applicant’s failure to go to her appointed place of duty at 0630 accountability formation on 13 April 2007. b. The form indicates additional misconduct is listed on the continuation sheet, but the continuation sheet is not in the applicant’s available records for review. c. The applicant appealed the NJP on 10 July 2007, but the appeal was denied on 24 July 2007 after legal review. Her punishment included reduction in rank/grade to private/E-2. 15. A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) shows a field initiated elimination flag was initiated effective 5 July 2007. 16. A Standard Form 600, dated 9 July 2007, shows the applicant was seen at the DAMC Counsel Center, Psychology. The notes show the applicant had a history of chronic depression EPTS with multiple suicide gestures. She really wanted to be in the Army and she was temporarily better, but she had a miscarriage 2 weeks ago and after that she was admitted to Ward 5E for suicidal thoughts and a suicidal gesture of cutting her wrist. She was having trouble with her unit and felts there were racial issues of prejudice against her. Her diagnosis is listed as dysthymic disorder and she was released without limitations. 17. A DD Form 2808 shows the applicant underwent medical examination for the purpose of administrative separation on 30 July 2007. She was found qualified for service/administrative discharge under the provisions of Army Regulation 635-200, paragraph 5-17 with a physical profile rating of “1” in all factors. Her summary of defects and diagnoses lists extensive complaints, ovarian cyst, mental health. 18. Multiple additional DA Forms 4856 shows additional counseling in the month of August 2007, as follows: * on 7 August 2007, she was counseled as part of her notification of initiation of administrative discharge under the provisions of Army Regulation 635-200, paragraph 5-17 * on 13 August 2007, she was counseled regarding her physical profile restricting her from driving duties due to the increased dosage of her sedating medication, yet she was nonetheless seen driving 19. A Standard Form 600, dated 5 September 2007, shows the applicant was seen at DAMC, Gynecology Clinic for evaluation of a persistent right ovarian mass for surgical removal or continued follow-up. 20. An undated memorandum shows the following: a. The applicant’s immediate commander notified her of his initiation of action to separate her with a general discharge under honorable conditions under the provisions of Army Regulation 635-200, paragraph 5-17 for other designated physical or mental conditions. b. The reasons for his proposed action were as follows: (1) On 5 July 2007, she was diagnosed with depression with suicidal ideation and this disorder has interfered with her ability to perform within the military and treatment efforts have failed to achieve the goal of full fitness for duty. (2) On 10 July 2007, she received a company grade Article 15. She was found guilty of 5 failures to repair (FTR) and of altering an official report, resulting in reduction in rank/grade to private/E-2 and 14 days extra duty. c. The applicant was advised of her right to consult with counsel and submit statements in her own behalf. 21. On 7 September 2007, the applicant acknowledged receipt of notification of administrative separation under the provisions of Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions. She acknowledged understanding she had the right to consult with counsel and to submit written statements on her own behalf. 22. On 11 September 2007, the applicant acknowledged having been advised by consulting counsel of the basis for the contemplated action to separate her under the provisions of Army Regulation 635-200, paragraph 5-17 and indicated she would submit statements in her own behalf. 23. In the applicant’s self-authored statement, dated 11 September 2007, she indicated she was told by Dr. that her administrative discharge under paragraph 5-17 would result in an honorable discharge, only the paperwork shows she was being recommended for a general discharge under honorable conditions, which she disagrees with. She knows she is a good Soldier and was being punished for no reason; she had a physical profile stating she could miss formation due to the medication she was given. Although she hasn’t always been able to perform her duties due to her medical conditions, she has tried her best and everyone deserves a second chance. 24. In an undated memorandum, the applicant’s battalion commander recommended approval of the request for administrative separation under the provisions of Army Regulation 635-200, paragraph 5-17 due to other designated physical or mental conditions, with a general characterization of service. 25. On 26 September 2007, the approval authority directed the applicant’s honorable discharge under the provisions of Army Regulation 635-200, paragraph 5-17 due to other designated physical or mental conditions. 26. The applicant’s DD Form 214 shows she was honorably discharged on 12 October 2007 under the provisions of Army Regulation 635-200, paragraph 5-17, due to a condition, not a disability and was credited with 1 year, 8 months, and 19 days of net active service. It also reflects she was awarded the Iraq Campaign Medal. 27. A VA Form 21-0781 (Statement in Support of Claim for Service Connection for PTSD), dated 22 January 2008, shows the applicant made the following claims of stressful incidents: a. She visited Mosul, Iraq a couple of times for medical treatment due to a pain in her abdomen in October 2006. At times they were attacked by rocket propelled grenades (RPGs) at night close to where they slept. Her eardrums were affected by the PRG noises. Because she visited the hospital in Mosul a lot, she had to many times see other Soldiers and civilians who were injures, which affected her a lot. She still has flashbacks, especially of a little kid with his face all burned up who smiled at her. b. In January 2007, she was sent to LRMC in Germany from Iraq, because she couldn’t get the treatment she needed in Iraq. She had surgery and was hopefully going to go back to Iraq. A few days before the surgery, she was raped by another Soldier. The day of the surgery, her rapist was there and the doctors couldn’t tell why she was having anxiety attacks and couldn’t breathe, but it was because he was there. Later, she was unable to talk after the surgery due to having a tube inside her throat. Since then it has not been the same with her boyfriend and she has changed a lot. 28. A 13-page Compensation and Pension (C&P) Exam for Mental Disorders (Except PTSD and Eating Disorders), dated 2 June 2008, has been provided in full to the Board for review. It shows the applicant indicated sexual assault by her uncle, cousin, and father as a child and hospitalization while in college for a suicide attempt. It additionally shows that records indicate a PTSD evaluation was not warranted due to the applicant’s inability to provide proof of a stressor. Also, many records indicate she displayed problematic behavior, which she did not agree with. 29. A VA letter, dated 10 January 2013, shows the applicant was granted a service- connected disability rating of 70 percent for PTSD (claimed as depression and dysthymic disorder) effective 27 January 2011. She was denied service-connection for dyspareunia associated with right ovarian cyst and right ovarian cyst. 30. A VA Decision Review Officer Decision, dated 30 August 2016, shows the applicant was granted a service-connected rating of 0 percent for right salpingo-oophorectomy effective 12 July 2011 and an increase in evaluation to 100 percent effective 23 September 2013 through 1 January 2014. 31. A 13-page report from Dr. , PhD, Psychologist, dated 5 May 2017, as been provided in full to the Board for review. In pertinent part that due to the severity and worsening of the applicant’s PTSD, she clinically fits the VA disability criteria for a 100 percent disability rating and the VA eligibility and evidence criteria for Total Disability Individual Unemployability (TDIU). Her migraines are at least as likely as not secondary to and aggravated by her service-connected PTSD, thus making her migraine headaches service-connected. 32. A Board of Veterans’ Appeals (Board Decision, dated 26 September 2018, shows the following: * entitlement to service-connection for migraine headaches to include as due to service-connected PTSD was granted * entitlement to an initial increased rating in excess of 70 percent disabling for PTSD was granted * entitlement to service-connection for acne vulgaris, to include as due to service- connected PTSD was remanded. 33. A VA Rating Decision, dated 9 September 2019, shows the applicant was granted a 100 percent combined service-connected disability rating effective 27 January 2011 for the following conditions: * PTSD (personal trauma PTSD/sexual assault/harassment), 100 percent effective 27 January 2011 * acne vulgaris associated with PTSD, 60 percent effective 18 August 2011 * migraine headaches associated with PTSD, 50 percent effective 18 August 2011 * right salpingo-oophorectomy, 100 percent effective 23 September 2013 34. A VA letter, dated 19 October 2019, shows the applicant has a combined service- connected evaluation of 100 percent and that she is considered to be totally and permanently disabled due solely to her service-connected disabilities effective 27 January 2011. 35. A 5- page medical records review report, dated 21 April 2020, signed by Mr. , Clinical Doctoral Student, Washington State University (WSU) and Dr. Ph.D., Clinical Director, WSU Psychology Clinic, has been provided in full to the Board for review. Is shows in pertinent part the applicant meets criteria for 100 percent disability due to symptoms of PTSD and associated medical problems and the condition was not pre-existing at the time of her entrance into the Army. 36. An undated witness statement from Sergeant First Class , shows the applicant was placed in his platoon prior to deploying to Iraq and she worked as a member of his team. Prior to deployment he observed her actions as being normal. From the time they arrived in Iraq, they regularly received incoming fire from outside the gate to include a mortar hitting the dining facility. Several months after they deployed, the applicant became sickly with abdomen issues, that in his opinion were due to her bad nerves from all the incoming fire. He saw a big difference in the applicant after they deployed and you could tell she was not the same Soldier as in the rear. 37. In the adjudication of this case, the U.S. Army Criminal Investigation Division (CID) provided the Army Review Boards Agency (ARBA) with a sanitized Report of Investigation (ROI), dated 7 February 2008, which has been provided in full to the Board for review. The ROI shows in pertinent part the applicant reported on 15 August 2007, that she had been raped on 6 January 2007 by an unknown Hispanic male while at the Vogelweh Inn, Kaiserslautern, Germany, while inside her on-post billeting room. Investigation determined there was insufficient evidence to substantiate the offense of rape had occurred as alleged. Interviews and lack of physical evidence due to a delay in reporting could not corroborate the applicant’s report. 38. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 39. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 40. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 41. MEDICAL REVIEW: The applicant is applying to the ABCMR requesting, through counsel, physical disability retirement in lieu of honorable discharge due to condition, not a disability. The applicant contends, through counsel, that given her history of combat and sexual trauma, she should have been medically separated instead of administratively separated. a. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory February are the following: 1) The applicant enlisted into the Regular Army on 24 January 2006; 2) She was reportedly exposed to combat trauma while deployed to Iraq and military sexual trauma while in Germany; 3) She was discharged on 12 October 2007, under provisions of AR 635-200, Chapter 5-17 due to other designated physical or mental conditions. b. The Army electronic medical record (AHLTA), VA electronic medical record (JLV), and ROP were reviewed. A review of AHLTA shows the applicant with a significant BH history while on active duty. A post-hospitalization note dated 28 February 2007 shows that applicant was psychiatrically hospitalized with suicidal ideation 20 February 2007 until 26 February 2007. While hospitalized the applicant reported a history of depression predating her military service, a suicide attempt in 2005, and multiple childhood sexual assaults by male family members. She was diagnosed with Adjustment Disorder w/depressed mood and received outpatient BH treatment for adjustment disorder until June 2007. A note dated 20 June 2007, shows the applicant’s diagnosis was changed from Adjustment Disorder to Dysthymic Disorder. During the 20 June visit the applicant inquired about a referral to MEB for PTSD, however, the provider didn’t think it was indicated as he believed all of her symptoms predated military service, he was apparently not aware of her contended combat trauma and MST. On 5 July 2007, the same provider conducted a Report of Mental Status Evaluation of the applicant and found, in part, the soldier should be expeditiously administratively separated from service and not allowed access to weapons or ammo. A review of the ROP shows the same provider issued the applicant a temporary profile rating of S-3 due to the dysthymic disorder. The applicant continued receiving outpatient treatment through October 2007. c. A review of JLV shows the applicant is 100 percent service-connected for PTSD associated with combat and MST reportedly experienced in Iraq and Germany respectively. The applicant reported that while in Iraq she was exposed to indirect fire, witnessed multiple burn casualties, and feared for her life daily while in Mosul for medical treatment. Additionally, she reported being raped by a fellow service-member, while in Germany awaiting surgery. According to the applicant, on the day of the surgery the individual that raped her was present, resulting in her having an anxiety attack. She reportedly was unable to explain this to doctors, as she was intubated at the time. The individual was reportedly instructed to leave the area as his presence seemed to be upsetting the then patient. CID reports show the applicant did file a report later, however, the individual was not charged due to insufficient evidence. The applicant appears to have initiated BH treatment at the Central Texas VA on 23 May 2008. The applicant was reportedly referred for disclosing to a C&P examiner that she was thinking of killing her ex-boyfriend. Upon further examination the applicant was found to have no intent, plans, or means to kill her ex, and that he was in . The applicant went on to discuss her military trauma history and requested a referral for the MST group, to reportedly learn skill to help with childhood trauma issues. The C&P Examination dated 23 May 2008 found that although the applicant had a diagnosis of adjustment disorder and reported PTSD symptoms, she did not appear to meet diagnostic criteria for any Axis I disorder, to include adjustment disorder. She was found however, to meet an Axis II diagnosis of borderline personality disorder. A subsequent C&P dated 12 August 2011 found the applicant met diagnostic criteria for PTSD associated with combat-related trauma and MST, she was additionally diagnosed with Borderline Personality Disorder, by history. A VA letter dated 19 October 2019 shows the applicant 100 percent service-connected and permanently disabled due solely to her service-connected disabilities, effective 27 January 2011. The applicant continues receiving BH treatment currently at the Central Texas VA. d. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant had a condition that likely warranted referral to DES for consideration of separation through medical channels. e. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? (a) Yes. The applicant has a 100 percent service-connected diagnosis of PTSD associated with combat and MST. (2) Did the condition exist or experience occur during military service? (a) Yes. According to the applicant, she experienced combat-related trauma while in Iraq, and MST while awaiting surgery in Germany (3) Does the condition or experience actually excuse or mitigate the discharge? (a) Yes. Given the 100 percent service-connected diagnosis, it appears the applicant was suffering from symptoms associated with the trauma while on active duty. It is possible the applicant wasn’t properly diagnosed at the time, resulting in an administrative separation instead of a referral to IDES. Given the above information, it is recommended the board give strong consideration to a referral to DES for review. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered through counsel the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review through counsel of the applicant’s petition, available military records and the medical advisory the Board concurred with the advising official finding the applicant had a condition that likely warranted referral to DES for consideration of separation through medical channels. Based upon the preponderance of the evidence, the Board agreed that counsel demonstrated the applicant’s record should be referred to the Office of the Surgeon General for medical evaluation consideration, with all relief dependent upon a final medical determination. Therefore, the Board granted partial relief. 2. Referral to the IDES occurs when a Soldier has one or more conditions which appear to fail medical retention standards as documented on a duty liming permanent physical profile. The DES compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring her records to The Office of the Surgeon General for review to determine if she should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of her case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue her the appropriate separation retroactive to her original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to a physical disability retirement in lieu of honorable discharge due to condition, not a disability. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 3. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. c. Before and during active service, the following presumptions will apply to physical disability evaluation: (1) A Soldier was in sound physical and mental condition upon entering active service except for physical disabilities noted and recorded at the time of entry. (2) Any disease or injury discovered after a Soldier entered active service, with the exception of congenital and hereditary conditions, was not due to the Soldier’s intentional misconduct or willful neglect and was incurred in line of duty (LOD). (3) If the foregoing presumptions are overcome by a preponderance of the evidence, any additional disability or death resulting from the preexisting injury or disease was caused by military service aggravation. (Only specific findings of “natural progression” of the preexisting disease or injury, based upon well-established medical principles are enough to overcome the presumption of military service aggravation.) (4) Acute infections and sudden developments occurring while the Soldier is in military service will be regarded as service-incurred or service-aggravated. Acute infections are those such as pneumonia, active rheumatic fever (even though recurrent), acute pleurisy, or acute ear disease. Sudden developments are those such as hemoptysis, lung collapse, perforating ulcer, decompensating heart disease, coronary occlusion, thrombosis, or cerebral hemorrhage. This presumption may be overcome when a preponderance of the evidence shows that no permanent new or increased disability resulting from these causes occurred during active military service or that such conditions were the result of “natural progression” of preexisting injuries or diseases as in (3), above. (5) The foregoing presumptions may be overcome only by a preponderance of the evidence, which differs from personal opinion, speculation, or conjecture. When reasonable doubt exists about a Soldier’s condition, an attempt should be made to resolve the doubt by further clinical investigation and observation and by consideration of any other evidence that may apply. In the absence of such proof by the preponderance of the evidence, reasonable doubt should be resolved in favor of the Soldier. 5. Army Regulation 40-501, provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) gives the various medical conditions and physical defects which may render a Solder unfit for further military service and which fall below the standards required for the individual. The condition dysthymic disorder is not specified by name in chapter 3. a. Paragraph 3–32 (Mood disorders) states the causes for referral to an MEB are as follows: (1) Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or (2) Persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or (3) Persistence or recurrence of symptoms resulting in interference with effective military performance. b. Paragraph 3–33 (Anxiety, somatoform, or dissociative disorders) states the causes for referral to an MEB are as follows: (1) Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or (2) Persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or (3) Persistence or recurrence of symptoms resulting in interference with effective military performance. c. Paragraph 3–36 (Adjustment Disorders) states situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty. 6. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 7. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-17 states a service member may be separated for other designated physical or mental conditions that potentially interfere with assignment to or performance of duty. not amounting to disability under Army Regulation 635-40 and excluding conditions appropriate for separation processing under paragraphs 5-11 (Separation of personnel who did not meet procurement medical fitness standards) or 5-13 (Separation because of personality disorder) Such conditions may include, but are not limited to, the following: * chronic airsickness * chronic seasickness * enuresis * sleepwalking * dyslexia * severe nightmares * claustrophobia * other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired b. When a commander determines a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or a mental status evaluation in accordance with Army Regulation 40-501. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. c. Separation processing may not be initiated under this paragraph until the Soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. A Soldier being separated under this section will be awarded a character of service of honorable, under honorable conditions, or an entry-level separation. 8. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 9. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 10. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS//