IN THE CASE OF: BOARD DATE: 23 August 2023 DOCKET NUMBER: AR20230000285 APPLICANT REQUESTS: * reconsideration of her prior granted request for physical disability retirement, requesting increase of approved disability retirement rating from 70 to 100 percent * reconsideration of her prior request for monetary compensation for civil damages resulting from the denial of her civil liberties APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * numerous self-authored letters * Standard Form 88 (Report of Medical Examination), 20 April 1999 * Radiologic Exam Report, 24 April 2022 * Madigan Army Medical Center record, 21 December 2004 * numerous service records, including awards, certificates, promotion worksheets, Amy Physical Fitness Test Scorecard, Army Distance Learning Enrollment History * voided DD Form 214 (Certificate of Release or Discharge from Active Duty), covering the period ending 15 April 2005 * Department of Veterans Affairs (VA) Rating Decisions, 15 September 2005 and 5 January 2008 * Progress Notes, Neuro-Psychological Test Report, 21 December 2016 * DD Form 214, reissued on 14 May 2018 * witness statement, 27 April 2019 * therapist’s letter, 16 May 2019 * Army Review Boards Agency (ARBA) medical advisory opinion in Army Board for Correction of Military Records (ABCMR) case AR20190001485, 24 October 2019 * self-authored medical advisory opinion rebuttal, November 2019 * partial Board vote/determination in ABCMR case AR20190001485 * ABCMR memorandum, 16 February 2021 * partial Physical Disability Evaluation System (PDES) Narrative Summary (NARSUM), 16 April 2021 * self-authored NARSUM rebuttal, 3 May 2021 * multiple pages of correspondence regarding Physical Evaluation Board (PEB) non-election/non-concurrence, May 2021 * multiple self-authored appeals of and responses to PEB, June and July 2021 * multiple self-authored civil rights complaints to the Department of Justice, dated June 2021 - July 2022 * multiple sets of reassignment orders, dated between 2005 and 2021 * DD Form 215 (Correction to DD Form 214), issued on 8 December 2021 * U.S. Army Physical Disability Agency (USAPDA) letter, 13 December 2021 * ARBA letter, 10 February 2022 * Defense Finance and Accounting Service (DFAS) letter, 18 February 2022 * Title 42, U.S. Code * Title 5, U.S. Code * excerpts of multiple additional statutes FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20190001485 on 3 December 2019. 2. The applicant’s request for monetary compensation for civil damages resulting from the denial of her civil liberties does not fall under the purview of the ABCMR and will not be further discussed in this Record of Proceedings. The applicant is advised of her right to seek redress of this issue in a court of appropriate jurisdiction. 3. The applicant states: a. She is asking for a disability retirement pension rating increase from 70 percent to 100 percent and is requesting accountability and compensation for civil damages because she continues to be denied her civil liberties. b. On 16 April 2005, she was intentionally misdiagnosed by the Army and honorably discharged due to the symptoms of sexual assault that transpired while she was stationed in Korea on a 2-year tour, from 2002 – 2004. Two male Soldiers in their unit committed the act, Specialist (SPC) , who was in her squad, and SPC who was in the squad of her roommate, SPC . The perpetrators entered the barracks room she shared with her roommate by coming through the adjoining bathroom of two other women. Their commander said the assault would be kept in-house and the military police (MPs) would not be involved. Her sports bra was cut down the front and this is what made the act a criminal assault. She still has the cut-up sports bra. The Soldiers videotaped the act, but their commander erased the camera footage. c. She was sent to the Office of the Judge Advocate (JAG) to report the incident and her roommate wrote a letter on her behalf providing her version of the incident and about how she was being treated by the commander. She also gave the JAG officer and Equal Employment Opportunity (EEO) representative a complaint and an anonymously written hate letter that was placed under her door months earlier What she did not know at the time was that the JAG represented the company and not her, the victim. Her company commander covered up the crime by erasing the video footage. JAG was supposed to report the incident to the MPs, but as a favor to her company commander, he did not report the sexual assault or the hate letter. Her commander did not even want her to seek medical treatment. d. Due to how she was being treated on post, she called a therapist from her hometown, Licensed Marriage and Family Therapist (LMFT), Mr. , who had helped her with a private matter 12 1/2 years prior to her Army enlistment. She called him because she was not able to sleep and was full of anxiety and depression. Mr. , assisted her through teleconference 48hours after the assault and has continued to counsel her to this very day. e. She continues to distrust the Department of the Army because it was the Army personnel who intentionally misdiagnosed her to cover up this sexual assault and hate crime. She continues to pay out of pocket for counseling from 48 hours after the assault until the present day. The VA continued to cover up this act even though they were given the evidence. The Army and the VA both intentionally continue to cover-up this sexual violence and the coordinated cover-up of this horrific crime, including the intentional misdiagnosis. She was not even allowed to see a trauma specialist or go to the emergency room. She was sent to see a sick call doctor who gave her three prescriptions, two for anxiety and depression, and one for insomnia. A little over 1 week later, she had to return to the sick call doctor due to scratching up her entire body because of the feeling that bugs were crawling under her skin. She was told to continue taking the three prescription drugs and was also given Benadryl and placed on quarters. She tried her best to suppress the symptoms, but could not do so. She was put out of the Army due to the symptoms caused by this trauma and to this day she is still taking medication for insomnia. f. On 19 April 2005, she was asked by the VA to turn in the physical paper copies of the evidence. She turned in the hard copies of her EEO complaint, dated 12 January 2003, Duty to Assist letter, dated 3 May 2005, a copy of the anonymous hate letter that was placed under her room door from 2003, the statement in support of a claim from her roommate SPC , dated 6 April 2005, and her Original Claim for Compensation, dated 13 May 2005. She was awarded 100 percent unemployment and 70 percent service-connected disability for personal trauma/sexual assault/harassment, major depression and anxiety/post-traumatic stress disorder (PTSD). After giving the VA the physical paper copy, she was in return given a receipt copy and this is the reason her claim was approved. g. After intentionally misdiagnosing her for the past 17 1/2 years, she received a telephone call from at Fort Drum in March 2021, stating that her claim went in her favor. Then, on 19 May 2021, she was sent an emailed copy from the Army Review Boards Agency (ARBA) stating the claim was decided in her favor and that she would be placed on permanent disability retired list (PDRL) with a 70 percent disability rating and back pay from 2005 to the present. Two months later, on 28 July 2021, she was sent a second email from ARBA stating that due to her not signing her DA Form 199 (Physical Evaluation Board (PEB) Proceedings), no further actions could be taken by the Office of the Surgeon General (OTSG) or the PEB. On 16 July 2021, she sent her appeal of the PEB to the U.S. Department of Justice, Civil Rights Division, Employment Litigation Section in Washington, D.C. h. On 16 December 2021, she was sent by mail an 11-paged packet, which was sent to her prior address in, , which is an address she used when she exited the Army 17 1/2 years ago and has held no value since that time. Her current address (see her letter head) is on file and has been made available to each department involved with her case; the OTSG, the Army, ABCMR, PEB and VA have continued to send correspondence using her current address. She believes that the deliberate and intentional use of an invalid address is proof of another attempt to negate, silence, and demoralize her as a female Soldier. i. She also believes this was another attempt to cover up this calculated, discriminatory, and hate-filled crime from those who would seek formal actions against everyone involved with the claim. She is again requesting reimbursement. She has also requested financial compensation for the physical damage she incurred from being sexually assaulted while on duty, as well as for the mental and emotional damages incurred along with the costs associated with having to be admitted to the psychiatric ward periodically over the past 17 1/2 years. For the first 10 of those 17 1/2 years, she was in isolation. These amounts total $10,000,000.00. As stated previously in this letter, she appealed the notice of benefits when she received them on 13 May 2021. She is a qualified handicapped person and four legal statutes apply to her. She is entitled to 100 percent disability retirement and out-of-pocket costs and wishes to be paid accordingly. j. She has had a trust issue with everyone involved with this issue, on top of the shame and remorse for a situation over which she was totally powerless. To this day, she feels sexually broken. She has not been in an intimate sexual relationship since the assault. She went into isolation for the first 10 years after the assault and for a decade she spiritually, emotionally, and mentally shut down. She came out of isolation in 2015. k. She made a commitment to attend community college in her hometown of, and was given a work study position at the school’s VA office. Among the many things her supervisor placed in her charge was Army forms and there she learned about the Army DD Form 214 and how she came to learn the Army did her a disservice. She comprehends the wrong that was done to her then and the harm that continues to this day. While attending college, she received a Pinnacle Award as well as dual associate degrees, in Human Service and Alcohol and Substance Abuse. She is broken in a lot of ways, but she does not have a personality disorder. She is employable and she is educatable. Due to her distrust of the military, she is sending a copy of her claim to her Congressman. 4. A Standard Form 88, dated 20 April 1999, shows the applicant underwent medical examination on the date of the form for the purpose of Regular Army enlistment and was found qualified for enlistment with a physical profile rating of “1” in all factors. 5. The applicant enlisted in the Regular Army on 22 June 1999. 6. A Radiologic Exam Report, dated 24 April 2002, shows the applicant was seen for pain at distal coccyx (tailbone) after a fall in the bathtub the night prior. Routine views of the sacrum and coccyx demonstrated acute anterior angulation of the very distal coccygeal segment consistent with a fracture. The remainder of the structures were normal. 7. A DA Form 3822-R (Report of Mental Status Evaluation), shows the following: a. The applicant underwent a mental status evaluation on 9 November 2004, at the Behavioral Health Clinic, Madigan Army Medical Center after non-emergency command referral for concerns about mental fitness for duty. The applicant was found to have the mental capacity to understand and participate in the proceedings and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness). b. These results were based on a clinical interview and review of the applicant’s history and psychological testing. She reported difficulty supervising Soldiers, difficulty relating to other Soldiers, unassertiveness, and social withdrawal. She further reported sadness, difficulty concentrating, anxiety, sleep problems, and low self-esteem. It is likely that the current level of increased emotional distress was related to maladaptive coping behavior and personality traits suggestive of personality disorder. c. The applicant’s difficulty relating to others, particularly those under her command, appeared to be integral to her personality structure, of longstanding duration, and led to difficulty performing her military duties. Her psychiatric condition did not rise to the level of a Medical Evaluation Board (MEB); therefore it was recommended she be administratively separated under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) paragraph 5-13. The applicant denied suicidal and homicidal ideation; therefore she was considered at minimal risk at the time. The noted emotional and personality disturbance would not likely respond to command efforts at rehabilitation, such as transfer or reclassification, or to any treatment methods currently available in the military mental health system. For these reasons, the chain of command should immediately begin the administrative process for expeditious separation under chapter 5-13. d. The diagnostic impression shows major depressive disorder, PTSD and personality disorder, not otherwise specified. The applicant was to continue to receive supportive counseling at the Behavioral Health Clinic until her discharge. 8. A Madigan Army Medical Center medical record, dated 21 December 2004, shows the applicant was seen after the onset of red welts on her skin the night prior, which were very pruritic (itching). She felt better, but the lesions returned the day of her medical visit. There were no new foods or exposures, no recent illness, no new medications. The side of the medical record contains a hand-written note, presumably written by the applicant, which states she scratched herself due to the feeling that bugs were crawling under her skin. 9. Two DA Forms 4856 (Developmental Counseling Form), dated 24 November 2004 and 31 January 2005, show the applicant was counseled by her immediate and intermediate commanders respectively regarding the initiation of her honorable discharge under the provisions of Army Regulation 635-200, paragraph 5-13, due to personality disorder. 10. On 31 January 2005, the applicant was notified by her immediate commander of her initiation of action to honorably separate her under the provisions of Army Regulation 635-200, paragraph 5-13 due to her diagnosis of personality disorder, which prevented her from performing her military duties. She was advised of her right to consult with counsel, have her case considered by an administrative separation board, and to submit written statements in her own behalf. 11. On 31 January 2005, the applicant acknowledged receipt of notification from her immediate commander of her initiation of action to separate her under the provisions of Army Regulation 635-200, paragraph 5-13. On the same date, the applicant acknowledged having consulted with counsel and been advised of the basis for the action to separate her for a personality disorder, its effect, and the rights available to her. She waived consideration of her case by and administrative separation board, and did not submit statements in her own behalf. 12. On 15 February 2005, the approval authority directed the applicant’s honorable discharge under the provisions of Army Regulation 635-200, paragraph 5-13, due to personality disorder. 13. The applicant’s DD Form 214 shows she was honorably discharge on 15 April 2005, under the provisions of Army Regulation 635-200, paragraph 5-13, due to personality disorder and was credited with 5 years, 9 months, and 24 days of net active service. 14. A VA Rating Decision, dated 15 September 2005, shows the applicant was granted a service-connected disability rating for the following conditions effective 16 April 2005: * PTSD, major depressive disorder, 70 percent * status post fractured coccyx with residual pain, 10 percent 15. A VA Rating Decision, dated 5 January 2008, shows the applicant was granted individual unemployability effective 16 April 2005 and a combined service-connected disability rating of 70 percent for the following conditions effective 16 April 2005: * PTSD, major depressive disorder, 70 percent * status post fractured coccyx with residual pain, 10 percent 16. A VA Neuro-Psychological Test Report, dated 21 December 2016, shows the applicant underwent a neuropsychological screening assessment wherein she demonstrated restricted immediate attention span or memory span in which to register information verbatim and was referred to speech therapy for developing skills and received a letter requesting academic accommodations. 17. On 8 August 2017, the applicant applied to the Army Discharge Review Board (ADRB) requesting amendment to her narrative reason for discharge to remove reference to personality disorder as she was actually discharged due to PTSD resulting from military sexual trauma (MST). 18. Per the Board’s medical officer, the applicant had a mitigating medical or behavioral health condition which led to her separation and has a 70 percent disability raring from the VA for PTSD which is attributable to in-service MST. On 25 April 2018, the ADRB approved the applicant’s request, directing the issuance of a new DD Form 214, changing the separation authority to Army Regulation 635-200, paragraph 5-3 and the narrative reason for separation to Secretarial Authority, with corresponding separation code. 19. The applicant’s original DD Form 214 was voided and a new DD Form 214 was administratively reissued on 14 May 2018, per the above referenced ADRB proceedings, reflecting the applicant’s honorable discharge under the provisions of Army Regulation 635-200, paragraph 5-3, Secretarial Authority. 20. The applicant applied to the ABCMR in November 2018, requesting physical disability retirement due to MST and financial compensation for the injustice done to her. 21. The applicant provided a witness statement from her former barracks roommate, SPC , dated 27 April 2019, showing the following: a. In the middle of October 2002, while stationed at Camp Red Cloud, South Korea, she became roommates with the applicant. Prior to becoming her roommate, she was aware of a general prejudice against the applicant in their company based on her Muslim religion, with several other Soldiers labeling her “weird.” b. In the end of October 2003, she and the applicant were asleep in their barracks room on a Friday night, when about 6-7 Soldiers, both male and female, entered their room drunk with a video camera, as a sort of prank. They gained access to their room through the adjoining bathroom door belonging to the two female Soldiers who were with them. The two Soldiers in charge of the prank were SPC and SPC . They came in the room and turned on the lights, recording them waking up in shock. She got up and yelled at them to get out of their room and was trying to get the camera when one of the male Soldiers grabbed her by the waist and touched her breast. She pushed him off. c. When they left the room, she put on a robe over her pajamas and went outside to get the video camera. She found the owner of the camera, SPC ’s roommate, who eventually handed the camera over to her after initially refusing. She then went downstairs to her squad leader’s room and explained the situation, stating she wanted to call the MPs, but her squad leader insisted on keeping the camera and talking to the company commander and first sergeant, so she was not allowed to involve the MPs. The next day they explained the situation to their first sergeant and that same day the video camera was returned to the owners after their commander had erased the video. d. Both she and the applicant began having trouble sleeping and she noticed the applicant’s behavior around other people began to be very guarded; she would walk cringe and walk very close to the walls so as to not make herself noticeable to anyone. They were never offered any psychological help with their experience. During the weeks that followed, the Soldiers involved received reprimand for underage drinking, conduct unbecoming a soldier, and one was reduced in rank and they were ordered not to have any contact or to antagonize her or the applicant. It was not until SPC and SPC left their company that she got to somewhat feeling safe and that she was not going to be retaliated against for what had happened. e. A few months later, the applicant went to see the company commander, and she accompanied her for emotional support, but their commander did not want her to stay and told her to leave, so she gave her phone to the applicant for her to record the meeting and left them alone. The applicant said their commander was very angry; he yelled and belittled her throughout the conversation and that she left the room crying. She recorded the meeting and went to see their sergeant major regarding the commander’s treatment, playing the recording of the meeting. The sergeant major took the phone and deleted the conversation of the meeting. 22. The applicant provided a letter from Mr. , LMFT, dated 16 May 2019, which shows the following: a. He was writing to attest to the applicant’s details of sexual assault in her barracks in South Korea in October 2003. He has seen the applicant on and off in therapy for perhaps 24 years. The records from the earlier sessions are no longer available, but he well remembers the applicant’s anxious call to him within a short time (perhaps 24 hours or less) after that assault, in a panic appropriate to the situation. b. He worked wither to ground her feelings, normalized them, and tried to figure out resources available to her. He knew her roommate and that some recording was made of the assault, which she reported was later erased by her immediate supervisor. Shortly after the applicant’s transfer to Fort Lewis, WA, he spoke at length with a dr. with the VA about the reliability of the applicant’s reporting (highly reliable) and the likely diagnosis which is currently PTSD from the assault in Korea. After her discharge, the applicant would periodically renew counseling as she worked to develop a positive lost post trauma and post military. 23. In the adjudication of her application to the Board, a medical advisory opinion was obtained from the ARBA psychologist on 24 October 2019, which has been provided in full to the Board for review, and in pertinent part shows that based on a thorough review of all available records, regardless of a personality disorder diagnosis, her in-service diagnosis of and treatment for PTSD related to MST should have resulted in her referral to the IDES prior to an administrative separation and it was recommended the Board refer the applicant’s case to IDES for further consideration. 24. The applicant provided a copy of her November 2019 rebuttal to the ARBA medical advisory opinion, which has been provided in full to the Board for review. In the rebuttal, the applicant states her disagreement with multiple statements within the medical advisory opinion, to include, but not limited to the following: * she and her roommate were not sleeping with several Soldiers and her roommate did not make such a statement * her company commander regularly called her in his office to verbally abuse her and her command did not have the courage to intervene * it is not true that she was inconsistent with her medication * it is not true that she was actively involved in therapy for PTSD related to childhood sexual trauma; she did not have telephone counseling sessions with her therapist until after the sexual assault in Korea * her fitness for duty evaluation was solely related to being traumatized by the sexual assault * she did not mention her previous issues with alcohol and marijuana at the time of enlistment because her recruiter told her not to as she, at that time, had 12 years of sobriety * she did not say she struggled with a reading disability; she said she struggle with a math disability much of her life * it is not true that her sexual trauma reemerged from her childhood and she did not receive any inpatient psychiatric care for suicidal ideations prior to joining the military * it is not true that she had a serious suicide attempt in the late 1980s to 1990s and she was definitely not diagnosed with PTSD or borderline personality disorder * in May 2006, she was hospitalized with suicidal ideations and was not discharged with borderline personality disorder, but with PTSD and depression 25. On 3 December 2019, the Board voted to grant the applicant partial relief. The Board denied the request for correction of the applicant’s records to show she was retired for disability, but recommended the applicant’s records be referred to the USAPDA for review to determine if she should be processed through the PEB for disability separation or retirement. 26. An ABCMR memorandum to the USAPDA, dated 16 February 2021, shows the ABCMR directed the USAPDA take necessary action per the 3 December 2019 ABCMR Record of Proceedings to correct the applicant’s records as indicated, no later than 6 August 2021. 27. Records indicate the applicant underwent IDES processing, with MEB proceedings in April 2021 and subsequent initial informal PEB proceedings in May 2021. 28. The applicant provided the first page of a PDES NARSUM, dated 16 April 2021, prepared at Fort Drum, NY, which shows the reason for the applicant’s examination was her referral to the DES by the ABCMR for unfitting behavioral health conditions and lists multiple sources and references used in the evaluation. The remainder of the NARSUM is not available for review. 29. The applicant provided her 3 May 2021 rebuttal to the PDES NARSUM, addressed to the Fort Drum IDES office and it has been provided in full to the Board for review. Among her disagreements with the NARSUM are the fact that it states the highest possible characterization recommendation is a personality disorder, but she has been diagnosed with PTSD, major depressive disorder, and learning disorders brought on by the MST. Since her sexual assault, the Army has continued a pattern of deception. In 2019, the Army got an anonymous clinical psychologist to do a 6-page write up of her character [the ARBA medical advisory opinion], which contains fallacies that hinder justice. The Army refuses to officially recognize she suffers from MST. 30. The complete behavioral health NARSUM, dated 16 April 2021, PTSD Disability Benefits Questionnaire (DBQ), dated 16 April 2021, DA Form 3947 (MEB Proceedings), dated 20 April 2021, and DA Form 199 (Informal PEB Proceedings), dated 10 May 2021, are not in the applicant’s available records for review. 31. Email correspondence between the applicant and Ms. , her PEB Liaison Officer (PEBLO), dated 19 May 2021, shows the applicant was advised that the initial informal PEB determination, as reflected on the DA Form 199, shows the recommendation for her placement on the Permanent Disability Retired List (PDRL) with a 70 percent that and that she had a 6-day suspense to get back with her PEBLO and confer with representing counsel. 32. The applicant provided multiple pages of documents, dated between 19 May 2021 and 4 June 2021, reflecting her nonconcurrence with the PEB recommendation and request to appeal the MEB/PEB, expressing her belief that the Army violated her rights in accordance with the Civil Rights Act of 1968, based on hate crime provisions as she is Muslim, Title 10 U.S. Code Article 120 pertaining to rape and sexual assault, Title 19, U.S. Code, pertaining to conspiracy against rights and deprivation of rights under color of law, and Federal protected activities prohibiting willful injury or intimidation. She specifies in detail the issues she takes with specific passages of the ARBA medical advisory opinion and the PDES NARSUM. She states her appeal is about the raters saying she has a behavioral health problem. What she is appealing is that they are not rating the criminal sexual incident and covering it up. What she wants is restitution and to go back to work. She wants to be civil service civilian, not return to active duty. This is a work-related injury that occurred while she was on active duty in Korea and she should be compensated for this criminal act. 33. A memorandum from the applicant, dated 21 July 2021, and addressed to “Protect Our Defenders” indicates the applicant was forwarding to that organization information in response to her PEB Proceedings. She indicated she refused to sign the proceedings because the PEB left out the criminal part of her claim and the form has nothing to do with the sexual assault/serious trauma she suffered and for which she was put out of the Army. This form they are wanting her to sign is a lie and does not protect her rights. 34. The records provided by the applicant indicate she filed multiple civil rights complaints with the Department of Justice between June and July 2021, and those documents have been provided in full to the Board for review. 35. A DA Form 199 (Informal PEB Proceedings) shows the following: a. A reconsideration PEB convened on 9 September 2021, wherein the applicant was found physically unfit and recommended a rating of 70 percent and that her disposition be permanent disability retirement. b. Documents used in arriving at this determination included the ABCMR Record of Proceedings dated 3 December 2019, behavioral health NARSUM, dated 16 April 2021, DA Form 3947, dated 20 April 2021, PTSD DBQ, dated 16 April 2021, and DA Form 199, dated 10 May 2021. c. The applicant’s disabilities are identified as PTSD, unspecified depressive disorder, and unspecified anxiety disorder (MEB diagnoses 1-3), rated 70 percent. d. The records indicate the applicant’s behavioral health symptoms began after she was the victim of sexual assault in October 2003 while stationed in Korea. She reports seeking telephonic counseling with a civilian therapist immediately following the MST. Then in 2004, while still active duty, she was evaluated for behavioral health symptoms at a military treatment facility where she was diagnosed with adjustment disorder with mixed anxiety and depressed mood and a psychotropic medication, fluoxetine, was initiated. Three days prior to her administrative discharge from the Army, the VA mental health provider diagnosed her with PTSD secondary to MST and childhood trauma in addition to a personality disorder. She was honorably discharged on 15 April 2005 due to a personality disorder and her behavioral health conditions were not evaluated by an MEB prior to discharge. Further treatment near the time of discharge included an additional psychotropic medication, quetiapine, and admission to a residential behavioral health program in October 2006. Reasonable performance of the applicant’s Military Occupational Specialty (MOS) requires she perform certain activities. She is unfit because the records indicate at the time of her discharge, she was not capable of performing the duties required of her rank and grade and merited a permanent physical profile rating of “3” in factor S (Psychological) for these behavioral health conditions, rendering her unable to perform many functional activities, including carrying and firing her assigned weapon or living and functioning without restrictions in any geographic or climatic area without worsening of these conditions due to symptoms of depressed mood, anxiety, suspiciousness, near-continued panic, impaired memory, suicidal ideation, disturbances of motivation and mood, inability to establish and maintain effective relationships, and obsessional rituals. This condition is rated at 70 percent for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. e. The informal findings were reconsidered based on the applicant’s appeal. The DA Form 199, dated 10 May 2021 is hereby superseded. This case was adjudicated as part of the ABCMR. f. The Soldier’s Election portion of the form is incomplete; the applicant did not either concur or non-concur, did not indicate submission of an appeal, did not request personal appearance and did not sign the form. 36. A memorandum from the Fort Drum U.S. Army Medical Department Activity to the PEB President, dated 14 September 2021, indicates the applicant’s PEBLO made contact with the applicant on 13 September 2021 regarding her failure to sign the September 2021 DA Form 199. The applicant indicated that nothing had changed on the DA Form 199 and that she was not going to sign it. The memorandum shows the PEB was to be processed without the applicant’s election. 37. An additional DA Form 199, shows a second reconsideration PEB convened on 4 October 2021, wherein the Board found the applicant physically unfit and recommended a rating of 70 percent and that her disposition be permanent disability retirement. The medical conditions determined to be unfitting, the rating, and the listed rationale remained unchanged from the prior DA Form 199. The Soldier’s Election portion of the form is incomplete, as the applicant neither made an election nor signed the form. 38. A DD Form 215, issued on 8 December 2021, shows the applicant’s DD Form 214, reissued on 14 May 2021, was amended to show she was honorably retired due to permanent physical disability on 15 April 2005. 39. APDA letter to the applicant, dated13 December 2021, informed her that her original separation order was revoked and a new order issued, permanently retiring her with a 70 percent disability rating, retroactive to the date of her original Army separation. She was advised DFAS would calculate her correct disability retirement pay and allowances in accordance with the new order. In order for DFAS to establish and activate her pay account, she was advised she must first complete a DD Form 2656 (Data for Payment of Retired Personnel) and was advised to contact the nearest installation Retirement Services Officer for assistance in completing the DD Form 2656 and activating her retired pay account. 40. Documents provided by the applicant indicate she submitted another complaint to the Department of Justice on 4 February 2022. 41. On 10 February 2022, the applicant was sent a letter from ARBA advising her that DFAS was provided a copy of the Board’s decision, placing her on the PDRL with a rating of 70 percent. 42. An 18 February 2022 letter from DFAS to the applicant advised her that they received a copy of the ABCMR decision, but that they did not receive all necessary information to properly complete her case and they requested the missing information from the DFAS U.S. Military Retired Pay Office and once received would reopen her case and process her claim as soon as possible. 43. 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. 44. 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. 45. 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. 46. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting an increase in her military disability rating. She states: “I am asking for Disability Retirement Pension at 100% not at 70% and I request accountability/compensation for civil damages because I continue to be denied my civil liberties.” c. The ABCMR referred the applicant to the Legacy Disability Evaluation Process on 3 December 2019 for PTSD due to MST (AR20190001485). d. On 9 September 2021, the applicant’s informal PEB found her “posttraumatic stress disorder, chronic, due to military sexual trauma (MST) event(s); unspecified depressive disorder; and unspecified anxiety disorder” to be the sole unfitting for continued military service. The PEB derived a 70% disability rating using the VA Schedule for Rating Disabilities: “This condition is rated at 70% for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.” e. The PEB subsequently recommended she be permanently retired for physical disability. f. The 14 September 2021 memorandum from her PEB Liaison Officer shows the applicant refused to make her elections: Date of initial contact with SM [service member] VIA email 9/13/2021 Reasons for justification: SGT [Applicant] left me a voicemail 9/14/21 stating nothing has changed on the DA 199 on my end or hers and she was not going to sign DA Form 199. 9/13/21: Emailed DA 199 to SM and let her know via phone that I had sent it to her. 9/14/21: SGT [Applicant] left me a voicemail stating that nothing had changed on the DA 199 on my end or hers and that she would not be signing the DA 199 and for me to have a blessed day on purpose. 9/14/21: Per my supervisor, , I was to do the FTE [failure to elect] MEMO and send the case back. Please process without SM election. g. The VA’s Disability Ratings Activity Sites have personnel thoroughly trained in the derivation of disability ratings using the VASRD and provide all the ratings for the Integrated Disability Evaluation System. Review of her records in JLV shows the VA also derived a 70% disability rating for her PTSD and this remains her current rating. h. It is the opinion of the ARBA medical advisor there is no evidence of error in the PEB’s derivation of her military disability rating and thus an increase in her military disability is not warranted. ? BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advising official finding no evidence of error in the PEB’s derivation of her military disability rating and thus an increase in her military disability is not warranted. Evidence in the record show, the applicant failed to sign the necessary DA Form 199 as required to finalize her packet based on the recommendation she be permanently retired for physical disability. Based on the preponderance on evidence, the Board found no error or injustice and determined reconsideration of her prior granted request for physical disability retirement, requesting increase of approved disability retirement rating from 70 to 100 percent is not warranted. Therefore, relief is denied. 2. The Board agreed the VA applies its own polices and regulations to make service connection and rating determinations. It is not bound by determinations made by the Army. With that, unlike the VA, the Army’s determination of fitness and its mandatory application of VA ratings is a snapshot in time whereas the VA can make service connection and rating determinations throughout the veteran’s life. The VA provides post-service support and benefits for service-connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service-connected disabilities. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board found the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20190001485 on 3 December 2019. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 2. 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 (DES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635- 40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (MOS) Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. c. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 4. 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. 5. 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. 6. 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// ABCMR Record of Proceedings (cont) AR20230000285 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1