AR20150009931

IN THE CASE OF:

BOARD DATE: 7 January 2016

DOCKET NUMBER: AR20150009931

THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).

THE APPLICANT’S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that her discharge be voided and she be medically retired.

2. The applicant states she has been told that she should not have been brought back on active duty with her diagnosis of post-traumatic stress disorder (PTSD) and that she should file a lawsuit. She has been told that she should have received a medical evaluation board (MEB) and been medically discharged. Her court-martial should not have anything to do with her receiving a medical discharge.

3. The applicant provides copies of her 2008 MEB Proceedings, 42 pages of medical documents, four sets of assignment orders, three pages of emails, a 22July 2009 U.S. Army Reserve (USAR) Periodic Health Assessment, four DAForms 3349 (Physical Profile), and her prior January 2011 Army Board for Correction of Military Records (ABCMR) decisional document.

CONSIDERATION OF EVIDENCE:

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 AR20100016457 on 4 January 2011.

2. The applicant’s prior request was to have the physical evaluation board (PEB) finding of “fit for duty” changed to “unfit for duty” and to afford her a medical retirement. Her current request can be construed to be either a request for reconsideration on the issue of a medical retirement or a new request for the same basic issue but based on her post PEB recall to active duty and court-martial without a second MEB and the Department of Veterans Affairs (VA) diagnosis of and award of disability benefits for post-traumatic stress disorder (PTSD). As the two requests are closely related, both aspects will be addressed.

3. The applicant enlisted in the USAR on 27 March 1987.

4. The record indicates a criminal investigation for conspiracy to commit fraud was initiated in 2006 naming the applicant as a one of the persons under investigation.

5. A 12 December 2007 MEB shows the applicant was evaluated for 14conditions with 9being found to be medically acceptable. The remaining conditions of a right shoulder condition, lumbago, bilateral plantar fasciitis, bilateral knee problems, and an anxiety disorder were referred to a PEB.

6. On 6 March 2008, a formal PEB found the applicant fit for duty noting that the Soldier’s multiple somatic and psychologic issues did not adversely impact the performance of her duties. Her anxiety disorder was multifaceted and long-standing and she had performed well during her mobilization and then assignment to the rear detachment. Her shoulder, back, knee pain and plantar fasciitis were long-standing and she had performed well as evidenced by her Noncommissioned Officer Evaluation Reports. Despite her commander’s letter, there was little evidence that she could not perform her duties in her leadership capacity as a master sergeant.

7. On 24 April 2008, the United States Army Physical Disability Agency approved the PEB findings stating the findings of “fit for duty” based on the preponderance of evidence provided by the PEB. It noted the mere presence of an impairment does not, of itself, always justify a finding of unfitness. If the applicant’s medical condition was determined to have worsened, her command or military treatment facility should initiate a new MEB and forward it to a PEB for a new fitness determination.

8. On 3 April 2009, the VA afforded the applicant a combined 80 percent disability, effective 5 August 2008, for the following conditions

* postoperative hammer toes of bilateral fifth proximal interphalangeal joints; hyperhidrosis; callus; hyperkeratosis; hard corns; mild bilateral plantar fasciitis; postoperative ingrown toenails excision; bilateral pes planus 30percent
* posttraumatic stress disorder with bipolar disorder 30 percent
* residuals of right knee arthroscope with partial medial meniscectomy, chondroplasty of the medial and lateral femoral condyle synovectomy and chondroplasty of the patella due to right knee patellar chondromalacia, synovitis, to include surgical scars 10 percent
* residuals of left knee arthroscopy with chondroplasty of the patella and medial femoral condyle with synovectomy and lateral release with anterior horn medial meniscectomy, to include three arthroscopy scars 10
* residuals of right shoulder open rotator cuff repair with distal clavicle excision, subacromial decompression, subdeltoid bursectomy, subacromial bursectomy, to include scars 10 percent
* right carpal tunnel syndrome 10 percent
* musculoligamentous strain of the cervical spine 10 percent effective
* lumbosacral strain (claimed as mid back pain) 10 percent
* right ovarian cysts is granted 0 percent
* denial of service connection for acne, traction alopecia, respiratory problems, left carpal tunnel syndrome, nocturnal bruxism, kidney stones, kidney infections, and uterine fibroids

9. The VA rating decision noted the following related to her PTSD diagnosis

* In January 2008, the applicant was found fit for duty by an MEB/PEB
* At the time of the rating determination the applicant felt as though she no longer needed therapy
* Ms. F____, a licensed clinical social worker, concurred with the applicant’s assessment as she was noted to be coping well
* She was last seen by Dr. S____ in February 2008. At that time, the applicant reported she was doing much better, with depression decreased due to use of Cymbalta
* Her diagnosis at this time was major depressive affective disorder and dysthymia
* the 2008 VA PTSD assessment examination rendered the diagnoses of PTSD and bipolar disorder
* The examiner opined, based on her valid Minnesota Multiphasic Personality Inventory II (MMPI-II) score and her statements, that she fit the criteria for diagnosis of PTSD
* The examiner rendered a diagnosis of PTSD based on her reports of being terrified of SCUD attack alerts while she was in Kuwait for a period of six months
* The examiner further indicated she had a comorbid condition of bipolar disorder, adding that there is overlap between these two conditions and it is impossible to find a distinction between the symptoms that derive from each condition
* Mental status examination shows she appeared sincere in the interview
* She cried a great deal but her thought processes were logical, coherent, and relevant
* She was articulate, verbal, well dressed, cooperative and well-groomed showing good social skills
* She seemed intelligent and her speech was well understood
* She was alert and oriented to time, place, person, and situation
* Her affect is labile, reasoning good and fund of information was good
* She exhibited no psychomotor slowing, but was agitated and restless
* Verbal comprehensive was good as was her concentration
* Her sensorium was clear

10. On 17 July 2009, the applicant was ordered to active duty for a period of 179 days. The applicant was ordered to active duty for trial by court-martial in accordance with the Manual of Courts-Martial Rule 202, Army Regulation 27-10 (Military Justice), and Army Regulation 135-200 (Active Duty for Missions, Projects, and Training for Reserve Component Soldiers).

11. On 26 October 2009, the applicant appeared before a general court-martial and was found guilty of

* larceny of government funds of a value of greater than $500.00
* theft of government funds
* dereliction of duty on divers occasions between 28 December 2005 and 28 August 2006
* with intent to deceive submitting ten false official reimbursement requests claiming unauthorized lodging reimbursement for expenses that she did not actually incur
* on divers occasions between on or about 16 November 2005 to on or about 28 August 2006, stealing government funds of a value of greater than $500.00

12. The court-martial panel recommended a sentence of reduction to pay grade E-6 (from E-8) and total forfeiture of all pay and allowances.

13. On 15 December 2009, the court-martial convening authority reduced the forfeiture to $2,246 pay per month for 12 months and directed the sentence be executed.

14. On 5 February 2010, Headquarters, Joint Readiness Training Center General Court-Martial Order Number 2 was promulgated. The available copy of these orders has a note that on 18 October 2010 the Office of the Judge Advocate General determined that the findings and sentence were supported by law and the sentence was appropriate. The case was not appealed to the U.S. Army Court of Criminal Appeals.

15. U.S. Army Human Resources Command Orders D-01-000890, dated 19January 2010, discharged the applicant from the USAR Control Group (Annual Training (AT)) effective 19January 2010.

16. On 7 May 2010, the applicant was released from USAR Control Group (AT) and assigned to USAR Control Group (Reinforcement).

17. U.S. Army Human Resources Command Orders C-05-007033, dated 11May 2010, released the applicant from the USAR Control Group (Reinforcement) and assigned her to the Retired Reserve due to completion of 20 or more years of Reserve duty.

18. U.S. Army Human Resources Command Orders D-05-008720, dated 12May 2010, honorably discharged the applicant from the USAR Control Group (Reinforcement) effective 12 May 2010.

19. On 4 January 2011, the Board denied the applicant’s request for a correction of the PEB finding that she was fit for duty or entitled to disability separation. It was determined that the preponderance of evidence showed that the applicant was fit for duty at that time.

20. The applicant provided treatment records for seven visits between July and December 2009. The following summaries were related to treatment of a mental health issue.

a. A 7 October 2009 visit was a self-referred visit for help coping with depression. The applicant reported that she was to undergo a court-martial on 26October.

b. During a 27 October 2009 visit the attending physician reported that the applicant reported a court martial that was completed the previous day had reduced her to staff sergeant and imposed a forfeiture of pay. She was depressed, but agreed there could have been a much more stringent ruling against her. She was under the impression that she would have another MEB and was requesting an MEB addendum from the clinic. She stated that her last MEB was for her feet and other orthopedic problems. The VA found PTSD as well, but she was unsure if the PTSD had been addressed in her original MEB. She told the doctor that the legal investigation, initiated in 2006, had put a stop to her last MEB. She states her first sergeant tried to get her commander to refuse her medical treatment. The doctor stated the applicant’s mental status evaluation was clear with no suicidal or homicidal ideation or other psychotic symptoms. The applicant was advised that the doctor and Captain O____ would review her case and determine if the clinic could write an MEB for her PTSD.

21. There is no indication that the mental health clinic determined that a second MEB/PEB was warranted.

22. Title 38, United States Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA does not make any determination as to whether an injury was unfitting for military service. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

23. The Manual for Courts-Martial, Rule 202(c) allows for a member of a Reserve component to be called or ordered to active duty for a variety of reasons, including training, service in time of war or national emergency, disciplinary action, or as a result of failure to participate satisfactorily in unit activities. Members of a reserve component in federal service on active duty, as well as those in federal service on inactive-duty training, are subject to the code. Moreover, members of a reserve component are amenable to the jurisdiction of courts-martial notwithstanding the termination of a period of such duty.

24. Army Regulation 27-10 (Military Justice) provides that Reserve Component Soldiers may be tried by a special or general court-martial only while serving on active duty.

25. Army Regulation 135-200 provides that USAR Soldiers may be retained or called involuntarily to active duty or active duty for training for the purpose of completing an investigation initiated with a view to trial by court-martial up to the date of completion of the disciplinary action.

26. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that those members who do not meet medical retention standards will be referred to a PEB to determine whether they are physically unfit to perform their duties and if found unfit, to determine the percentage of disability to be awarded. This regulation also provides that only 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.

27. Army Regulation 635-40 further provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individual’s performance, and requirements which may be imposed on the Army to maintain and protect him or her during future duty assignments.

28. Army Regulation 635-40, paragraph 3-2b(2), also provides that when a member is being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that they are fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION AND CONCLUSIONS:

1. The medical documentation provided by the applicant for the most part post-dates the applicant’s MEB/PEB. The remaining medical evidence was of record at the time of the prior review.

2. While treatment records show she was receiving ongoing care for a number of conditions, the medical treatment records provided do not give full or specific findings for any of her medical and mental conditions. They do not show a worsening of her conditions.

3. The applicant contends that she should have been afforded a second MEB/PEB following being called back to active duty for her court-martial. While the mental health clinic indicated a second MEB might be warranted, it does not appear that upon full and final consideration by the mental health professionals that there was sufficient justification to process her through the MEB/PEB process a second time.

4. The applicant’s 2009 orders to active duty were for the purpose of being tried by a general court-martial. Her “duty” requirements during this period were to prepare for and participate in her court-martial. The applicant has not provided and the record does not contain any evidence that she was unable to perform her assigned duties or to act in her own behalf at her court-martial.

BOARD VOTE:

________ ________ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

____x___ ___x____ ____x___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100016457, dated 4 January 2011.

2. Further, the evidence presented does not demonstrate the existence of a probable error or injustice in her being called to active duty on 17 July 2009. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

_______ _ _x______ ___
CHAIRPERSON

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.
ABCMR Record of Proceedings (cont) AR20150009931

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ABCMR Record of Proceedings (cont) AR20150009931

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