Mr. Little requests reconsideration of the Board’s decision dated 05 October 2019 finding that insufficient evidence exists to support his request for permanent disability retirement.
Mr. Little is a combat veteran of the United States Navy withseverely disabling Post-Traumatic Stress Disorder (PTSD) andDepressive Disorder, both of which were diagnosed in service. Heserved as a Navy Aviation Boatswain’s Mate, Aircraft Handling, Second Class Petty Officer (ABH2) on active duty before affiliating with the Navy Reserves and serving as a Detention Operations Officer during two Individual Augmentee (IA) deployments to Iraq and Afghanistan. Mr. Little endureddevastating mental and emotional trauma while serving in Camp Bucca, Iraq, but continued to serve a second tour in Afghanistan.
Mr. Little first suffered an injustice when the Navy failed to promptly identify his PTSD symptomology and at the very least place him on the Temporary Disability Retired List (TDRL) upon completion of his deployment to Afghanistan or soon thereafter. As he has attested repeatedly, by August 2009 he was unable to carry out his duties as an ABH2. At that point, the Navy erred by not referring him for medical evaluation and processing him through the Integrated Disability Evaluation System (IDES). Time and time again over the following decade, Mr. Little endured multiple errors and injustices by Navy leadership as he fought for recognition of the symptoms that had changed him irrevocably but were continuously ignored by the only people who could help him.
When he finally did receive a medical evaluation, the Formal Physical Evaluation Board erred in its application of the permanent disability retirement standard. This request for reconsideration will address that standard and how Mr. Little has either met or exceeded its criteria since 2009. We will review the timeline of errors and injustices that have left Mr. Little without recognition or assistance from the United States Navy despite the mental wounds incurred by his service to it. We respectfully request that the Board keep three points in mind while reviewing Mr. Little’s case:
1. The Hagel Memo requires that the Board give liberal consideration to Mr. Little’s request for change to permanent disability retirement due to his PTSD.
The 25 August 2017 Department of Defense Memorandum providing Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of the Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment (“Clarifying Guidance”) provides that veterans discharged prior to implementation of heightened screening measures “may be the victim of injustice because commanders fully informed of such conditions and causal relationships today may opt for a less prejudicial discharge to ensure the veteran retains certain benefits, such as medical care.” The memorandum notes that external sources of evidence to include lay statements from family and peers are to be considered with equal weight, and specifies that liberal consideration be given to veterans petitioning for discharge relief when the application is based in whole or in part on matters relating to mental health conditions including PTSD.
Mr. Little went through the IDES process before the Navy had the deeper understanding of PTSD that it does today. In his submissions to the Physical Evaluation Board (PEB) and BCNR, Mr. Little provided numerous personal statements as well as lay statements of others with evidence that has been routinely ignored. We ask that the Board review that evidence along with new evidence offered in this brief with the liberal consideration required by the Clarifying Guidance.
2. Mr. Little’s PTSD and Depressive Disorder are combat-related injuries per SECNAVINST 1850.4E.
26 U.S.C. 104(b)(3) defines a combat-related injury as personal injury or sickness incurred as the result of armed conflict, amongst other things. SECNAVINST 1850.4E instructs that there must be a definite causal relationship between the armed conflict and the resulting unfitting disability, specifying that armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action, riot, or any other action in which service members are engaged with a hostile or belligerent nation, faction, force, or terrorists. Mr. Little suffered psychological injury, physical and mental abuse and feared for his life on a daily basis while deployed to Camp Bucca, Iraq in 2008 and Afghanistan in 2009. His resultant PTSD and Depressive Disorder are, therefore,combat-related injuries.
3. The burden of proof required of Mr. Little in this request for reconsideration is a preponderance of the evidence, not beyond reasonable doubt.
Per 32 CFR 723.3 and SECNAVINST 5420.193, an applicant for correction of naval records need only present sufficient evidence to demonstrate the existence of probable material error or injustice. SECNAVINST 1850.4E clarifies that the burden of proof required of applicants to the BCNR in cases of fitness or unfitness due to physical disability is a preponderance of the evidence. As we will review below, Mr. Little has exceeded thisstandard by providing substantial evidence of how his combat-related PTSD and Depressive Disorder rendered him unfit for continued duty and qualify him for permanent disability retirement.
In his arduous journey to receive the permanent disability retirement he is owed, Mr. Little has suffered numerous injustices, beginning with having to repeatedly try to convince those who are meant to help him that he is telling the truth. He is hardly the first service member to be unable to disclose certain information about his deployments. It is egregious that people ranging from medical personnel to this Board itself have called into question hisintegrity time and again. We ask that while reviewing this request, the Board strive to view this case as one of a combat veteran with debilitating invisible wounds of war who was abandoned by his command, ignored by the presiding members of a Formal PEB hearing, and ultimately let down by the service to which he gave everything.
ARGUMENT
I. The PEB committed an error by failing to find that Mr. Little qualified for permanent disability retirement or, in the alternative, placing him on the temporary disability retirement list.
Mr. Little met the criteria for unfitness at the time of his PEBin 2016. Per SECNAVINST 1850.4E, the sole standard to be used in making determinations of physical disability as a basis for retirement or separation is unfitness to perform the duties of office, grade, rank or rating because of disease or injury incurred or aggravated while entitled to basic pay. It further instructs that “If a member's nature of disability does not meet the criteria for permanent retirement set forth in paragraph 3705 and 10 U.S.C1202, place the member on the TDRL in accordance with 10 U.S.C. 1202 or 1205, as appropriate. Also, place members whose disabilities are unstable on the TDRL, if otherwise qualified.”
Both the Informal PEB (IPEB) and Formal PEB (FPEB)concluded that Mr. Little was fit to continue on active dutybecause his PTSD was not severe enough. Even if these boards had adequate evidence to support a finding that Mr. Little did not qualify for permanent disability retirement, he certainly should have been placed on the TDRL rather than found fit and left in limbo in the IRR. The existence of Mr. Little’s PTSD and Depressive Disorder were never in contention despite some apparent confusion by the members of the FPEB. The worst-case scenario for Mr. Little should have been a determination that his PTSD and Depressive Disorder, along with Migraines, were not of a permanent and stable nature per §3706. It would not have been wholly unfathomable, as with many cases involving mental health, for the Board to have considered his conditions potentially “unstable when the preponderance of medical evidence establishes that accepted medical principles indicates the severity of the condition will change within the next 5 years so as to result in an increase or decrease of the disability rating percentage or a finding of Fit.”
The complete disregard of substantial evidence establishing a severe case of PTSD and Depressive Disorder robbed Mr. Little of his ability to serve and a finding of fitness for duty are, on the other hand, quite difficult to comprehend.
II. The Informal and Formal PEBs erred in ignoring the great weight of the evidence presented by the MEB.
The MEB Narrative Summary (NARSUM) was filled with more than enough evidence that Mr. Little met and exceeded the above criteria. Unlike the members of the Formal PEB, the MEB consists of two or more physicians, one of whom “must have detailed knowledge of the standards pertaining to medical fitness retention standards, the disposition of patients, and disability separation processing.” Furthermore, in cases such as Mr. Little’s involving behavioral health, the MEB must include a thorough behavioral health diagnosis and the signature of at least one psychiatrist or psychologist with a doctorate in psychology.
The reasoning and conclusions of the MEB were, therefore,by experts qualified in assessing PTSD and Depressive Disorder, unlike those who made up the Formal PEB, amongst whom the only medical professional was a Navy occupational doctor. Weask that the Board revisit the NARSUM in reviewing Mr. Little’s case and keep in mind that it was written with highly specialized knowledge of his conditions and their effects.
a. The FPEB erred in not complying with the requirements of DODI 1332.18 to consider both of Mr. Little’s behavioral health diagnoses of PTSD and Depressive Disorder, and their combined effects on his fitness for duty.
Per DODI 1332.18, the MEB documents whether the service member has a medical conditions, whether singularly, collectively or through combined effect, that will prevent him from reasonably performing the duties of his office, grade, rank, or rating. If the service member cannot perform the duties of his office, grade, rank, or rating, the MEB refers the case to the PEB. It is our contention that in failing to consider Depressive Disorder, the FPEB did not meet this requirement to consider the combined and chronic effects of PTSD and Depressive Disorder. While we do not at all concede the point that Mr. Little’s PTSD is not on its own unfitting, even if the PEB came to that conclusion they failed to consider that the combined effects of both PTSD and Depressive Disorder have unquestionably left Mr. Little unable to perform the duties of an ABH2.
The MEB concluded that the “chronic nature” of Mr. Little’s PTSD and Depressive Disorder made it unlikely that he would improve sufficiently in the next five years to meet retention standards. They rated both PTSD and Depressive Disorder individually as diagnoses preventing Mr. Little from meeting retention standards in accordance with SECNAVINST 1850.4E. The PEB, however, did not even consider Mr. Little’s Depressive Disorder when making its determination, instead only assessing PTSD and Migraines. The MEB assessed Mr. Little for Migraines and Chronic Lumbar Strain in addition to PTSD and Depressive Disorder, but did not rate either as unfitting. Furthermore, neither of the latter were mentioned in the IPEB findings making it wholly unclear why the FPEBfailed to even mention Depressive Disorder and instead chose to focus on Migraines.
DODI 1332.18 identifies relevant evidence in assessing fitness of a member referred for a chronic condition, stating “[W]hen a service member is referred for disability evaluation under circumstances other than as described in paragraph 3.a. of this appendix, an evaluation of the service member’s performance of duty by supervisors may more accurately reflect the capacity to perform. Supervisors may include letters, efficiency reports, credential reports, status of physician medical privileges, or personal testimony of the service member’s performance of duty to provide evidence of the service member’s ability to perform his or her duties.” To clarify, Mr. Little was referred for a chronic condition, as the MEB repeatedly references in the NARSUM. This means that even if the PEB concluded that the medical evaluation alone did not justify a finding of unfitness and permanent disability retirement, they were bound to consider additional forms of evidence as listed in section b. In Mr. Little’s case, it appears that the FPEB members misunderstood or simply missed a great deal of evidence supporting an unfitness determination in the form of supervisor letters and oral testimony, as well as the member’s own personal letters and testimony.
b. Mr. Little’s NARSUM was inadequate and therefor did not serve its intended evidentiary purpose in a determination of unfitness.
Mr. Little suffered an injustice at this point as his Non-Medical Assessment (NMA) should have been a crucial piece of evidence to be considered in determining his unfitness. Per SECNAVINST 1850.4E, “[T]his document is crucial in summarizing the member’s limitations from the perspective of the commanding officer. Given the disability evaluation system’s emphasis on performance, the NMA’s ability to highlight the sailor or Marine’s ability/inability to execute duties as required of his/her rating/rank and the reality of their contribution is critical in portraying a service member’s limitations. Capturing the command’s observations as to how the service member’s impairments have or have not impacted upon the member’s ability to function within the command through concise and succinct statements greatly assists the voting members in determining the Fit/Unfit potential of the member.”
Mr. Little’s NMA was written by a commanding officer who, by his own admission, had “not had the pleasure of getting to know ABH2 Little or seeing his work ethic” and based his entire opinion in what would form a crucial piece of evidence upon Mr. Little’s service record. This CO does nonetheless state that Mr. Little “struggled to adapt to being back home due to multiple exposures to invisible wounds,” conceding that Mr. Little was no longer the “great sailor with wonderful potential prior to his injuries.” The issue arises with the recommendation for retention, which was based on Mr. Little’s own confusion surrounding his fitness and abilities at that point. Mr. Little believed he could remain in the Navy because he thought that was what he was supposed to say and do as a good sailor, so that is what he told his CO which was the basis of the CO’s recommendation. Mr. Little, however, was clearly not competent to diagnose his own mental health disabilities of PTSD and Depressive Disorder, and he was at that time navigating acceptance of the fact that he was no longer the man or sailor he was before his multiple tours of duty. It was the Navy’s duty to identify his unfitness for duty and afford him the mental health assistance he required.
c. The PEB erred in its findings of fitness because it ignored the MEB’s conclusions based on the VA rating criteria.
The MEB’s supporting evidence for finding PTSD and Depressive Disorder to be unfitting conditions, in combination with the 09 APR 2014 VA Disability Rating Decision awarding a 70% rating for PTSD and Depressive Disorder, was ample proof for the PEB to grant Mr. Little permanent disability retirement, or at the very least placement on TDRL. While the PEB is not bound by the VA Rating Decisions, it is instructed to use the VA Schedule for Rating Disabilities (VASRD) per SECANVINST 1850.4E §3802 once a member is found unfit. Since a member such as Mr. Little would be unfit should his injuries leave him 30% disabled or more per the VASRD guidelines, it is especially difficult to comprehend how the he was found fit for duty at the PEB level.
The VASRD diagnostic requirements for PTSD include (1) a stressor (2) intrusive recollection (3) avoidance (4) negative alternations in cognition and mood (5) hyper-arousal (6) duration (7) functional significance. The MEB addressed the symptoms in the NARSUM based upon a VA Disability Benefits Questionnaire (DBQ) for PSYCH PTSD Exam dated 29 SEP 2015 diagnosing Mr. Little with PTSD and Unspecified Depressive Disorder.
(1) Stressor: The MEB directly attributed Mr. Little’s PTSD to his experiences of “moral injury, physical and mental abuse and feared for his life on a daily basis” during his 2008 deployment to Camp Bucca, Iraq. His reports of not only witnessing riots but being in the midst of them have been detailed repeatedly in his medical notes as well as his personal statements.
(2) Intrusive Reminders: The MEB mentioned triggers leading to intrusive reminders about his deployments, specifically the smell of feces and hearing people speaking Arabic. The latter was sadly confirmed by Mr. Little’s witnessing of a car crash when the driver began speaking Arabic and he experienced a full-blown PTSD flashback panic attack that required hospitalization. The MEB also noted nightmares about his deployment experiences.
(3) Avoidance: The MEB mentions avoidance of situations such as crowds.
(4) Negative alterations in cognition and mood: The MEB references that Mr. Little reported suicidal thoughts to his Naval Reserve command in 2010. In lieu of receiving appropriate assistance and
(5) Hyper-arousal: The MEB mentions hypervigilance “such that he reported feeling watchful and easily startled, particularly by loud noises.”
(6) Duration: At the time of the PEB, Mr. Little’s PTSD symptoms had persisted and worsened over the course of six years. The VASRD requires presence of symptoms for more than one month.
(7) Functional Significance: The MEB made it very clear that “Despite multi-modal therapies his PTSD and depression prevent him from performing the requirements of his rank and Service.”
The above symptoms are all textbook PTSD per the VASRD and more than establish a PTSD disability rating of far greater than 30% to warrant a finding of unfitness. Again, even if both levels of the PEB agreed that Mr. Little did not yet meet that requirement for a finding of unfitness, the above evidence unequivocally established a case of PTSD that at the very least required placement on TDRL for a five-year period of monitoring symptoms. To be clear, this would contradict the MEB’s conclusion that the “chronic recurrent nature” of Mr. Little’s symptoms made it “unlikely that the SM will improve sufficiently in the next 5 years to meet retention standards.”
III. The Formal PEB Rationale erred in grossly misconstruingthe evidence that was available at the time.
In its analysis, the Formal PEB questioned and downplayed the horrific traumas Mr. Little endured on his deployments.
The Formal PEB stated Mr. Little “witnessed his colleagues treat detainees poorly, and he also suffered discrimination and isolation from his colleagues as he was one of the few Sailors in an Army unit.” This, however, was an unjust understatement and contained factual errors.
As made clear in oral testimony, Mr. Little did not just “witness his colleagues treat detainees poorly.” His command in Camp Bucca was relieved because of abuse of detainees, and at the time of the hearing Mr. Little testified that two of his shipmates were still in prison and two were dishonorably discharged as a result ofdetainee abuse. Mr. Little was not discriminated against because he was a Sailor serving in an Army unit, but rather because he attempted to speak out against this criminal treatment of detainees. This was a factual inaccuracy by the Formal PEB.
Further, on his second tour, the one in Afghanistan, he was completely alienated by his peers for nine months due to his position (not because he was a sailor in an Army unit), which required him to determine punishments for detainees. When detainees offered intelligence to avoid punishment, Mr. Little would be forced by his superiors to let them walk free with no punishment. In oral testimony, he cited having to look a female peer in the face after an assault by a detainee left her with 18 stitches across her head and tell her that her attacker would not be punished. The mental distress of doing this once, let alonerepeatedly for nine months, was astronomical and FPEB failed to mention this at all and mischaracterized it in its attempt to summarize the evidence.
Instead, the Formal PEB cited a Post-Deployment Survey of 20 APR 2009 in which Mr. Little indicated “That he did not experience nightmares, difficulty sleeping, inappropriate anger, feelings of depression, or anxiety since returning CONUS.” This demonstrates nothing in terms of Mr. Little’s PTSD, but does demonstrate the Navy’s reprehensible handling of mental health at the time. This survey was given one month after Mr. Little returned from his tour in Camp Bucca. Neither the VASRD nor the DSM manuals require that symptoms of PTSD be present one month after trauma exposure. In fact, it is exceedingly common for onset of symptoms to be significantly delayed. This makes this particular argument of the Formal PEB completely moot, andis an excellent reminder of why we now have the Hagel Memo to remind reviewing agencies to consider petitions involving mental health with compassion and a deeper understanding for the chaotic nature of these invisible wounds. Notably, the Formal PEB later cites another mental health survey given on 20 OCT 2009 prior to Mr. Little’s second IA tour, pointing erroneously to the fact that Mr. Little “had not received any mental health counseling in the past 3 years, taken any mental health medications in the last 3 years, and did not have any thoughts of suicide, homicide, or hallucinations.” This is, again, deeply misguided logic, as Mr. Little had only been through his traumatic experience in Iraq within the preceding year. Looking to the past three years as evidence of a lack of PTSD symptomology really has no bearingbecause over those three years he was not yet traumatized because he had not yet been to Iraq, then was in Iraq, then was merely months out of Iraq.
The FPEB goes on to unjustly question the timeline of Mr. Little’s Iraq deployment with “known events that have been documented in numerous open sources,” but does not cite those sources. This has already been addressed eloquently in the Petition for Relief dated 1 JUN 2016 and frankly is so plainly erroneous and unjusty that we will refrain from addressing it at length yet again. The Hagel Memo requires Mr. Little’s personal accounts of what he experienced in Iraq and Afghanistan, which have been validated by those who served with him in peer statements and in the media, to be taken as true.
IV. The Formal PEB erred in factually misrepresenting oral testimony in its Rationale.
Possibly the most erroneous misrepresentation made by the Formal PEB is the assertion that Mr. Little’s supervisors and peers testified that his civilian work performance was not only adequate enough to suggest retention in the Navy, but that he was thriving, because the testimony was exactly the opposite.
The PEB cites RADM Hall and MCPO Niblack as singing Mr. Little’s praises, while this could not be further from the points each tried to make. We have included compact discs with recordings as well as a transcript of the oral proceedings and beseech the Board to review them. We believe that the contents are crucial evidence proving the error and injustice made in denying Mr. Little permanent disability retirement. The following evidence is taken from the recordings.
MCPO Niblack testified in the formal hearing that it was quite obvious to him that Mr. Little’s IA tour had affected him, and that he had to work very hard to earn Mr. Little’s trust. MCPONiblack stated that Mr. Little really only began to open up upon learning that Niblack himself had been to Afghanistan. MCPONiblack did state that it was difficult to discuss his friend’s shortcomings in public, but overall painted a very clear picture of how deeply Mr. Little suffers daily.
Regarding symptoms of PTSD, MCPO Niblack stated that Mr. Little started out in his civilian job with great enthusiasm for his work, but all of a sudden began having interpersonal troubles and was unable to do his job, leading to his resignation. Niblackreported fielding many complaint calls from civilians regarding Mr. Little, and said that he tries to diffuse the friction as best possible. MCPO Niblack also shared with the Board that there are times when Mr. Little could not come to work because of headaches, nightmares, sleep deprivation, and so on, and alsotestified to having taken Mr. Little to the hospital. He poignantly observed that it is very difficult for Mr. Little to not be at his best and that he attempts to hide it by not coming to work, paralleling this to the lengths to which Mr. Little goes in order to hide his symptoms from his wife. When asked, MCPO Niblack stated he would neither take Mr. Little to Afghanistan nor have him on a flight deck, aptly describing aviation as a “zero defect game.”
The Board similarly misrepresented the testimony of RADM Hall, saying that he “portrayed the member as extremely capable.” RADM Hall, an aviator and Air Boss, began his testimony by describing the duties of an ABH2. He described them as leaders of the flight deck in charge of the safe launch and landing of aircraft, and attested that the job requires 100% attention to detail, environment, and surroundings at all times during a 14-hour day. He testified that even a headache would be a tremendous hindrance, affecting attention, vision, response time, and length of time one could spend on the flight deck. He stated at the end of testimony that Mr. Little did not belong on a flight deck.
RADM Hall went on to describe Mr. Little’s PTSD, saying his symptoms were very consistent. He stated that triggering events could be anything from work to family to nothing whatsoever, and upon looking over at Mr. Little said that he could see the warning signs in him at that very moment as Mr. Little fidgeted and attempted to sternly focus. Perhaps most importantly, RADM Hall made it very clear that he had no problem making accommodations for Mr. Little in their working relationship, saying that his work performance was based not on hours in an office but on Mr. Little’s interactions with Congress. This is an extremely important point.
Even if Mr. Little were still able to hold this civilian job, it had no relevance as to whether he could continue to perform the duties of an ABH2. There is no place in the Evaluation and Counseling forms where a sailor is ranked based on their ability to make interpersonal connections. They are expected to show up on time every day and do their job. RADM Hall made it exceedingly clear that Mr. Little was routinely accommodated and staff was educated on his condition to make allowances for him. Before ending his testimony, RADM Hall addressed the question about a supportive letter he had previously written, saying that there was a time difference and that Mr. Little was no longer the person described therein.
The overall impression left by MCPO Niblack and RADM Hall, as well as every other person testifying was that Mr. Little was a formerly excellent worker who currently struggled. He was described as often absent and unpredictable. The most confusing part of this case seems to be the fact that Mr. Little tried valiantly for years to push through his PTSD symptoms rather than just succumbing to their effects. It seems that from the PEB level onwards, this has been held against him. At times it has essentially been suggested that he should have recognized his symptoms promptly and identified his disability himself, while this duty in fact lies with the Navy. The standard to be applied here is that of fitness or unfitness for duty. None of the testimony presented suggested that Mr. Little came anywhere close to being capable of the primary duties of an ABH2. The FPEB’s finding to the contrary was clearly erroneous. The testimony did however, make it very clear that Mr. Little’s PTSD and Depressive Disorder made him unable to continue the reasonable performance of duties per SECNAVINST 1850.4E § 3304.
The testimony of Mr. Little’s wife, Elizabeth Ann Little, was wildly misrepresented in the FPEB decision. To start, there is no burden on Mrs. Little to professionally diagnose each symptom of PTS in her husband. In its Rationale, the Formal PEB describes her testimony as “particularly informative” as she “witnesses the member in a wider range of environments than his coworkers.” Mrs. Little has written a new statement addressing this and other issues with the Board’s characterization of her testimony. She reiterates in her letter that, as stated in oral proceedings, she works long hours as a corpsman, leaving by 0530 and does not return until around 1700 in the evening. This means that, contrary to the Board’s statement, she does not witness him in a wider range of environments than his co-workers. As she aptly points out, this case is to determine Mr. Little’s fitness for duty, so there is nothing more relevant than the observations of those co-workers and their impressions of his ability to function in a militaryenvironment. The most “particularly informative” testimony and evidence is that which supports the conclusion that his PTSD and Depressive Disorder have left him unable to fulfill his duties as an ABH2. Mrs. Little also contradicts the FPEB’s suggestion that because she could not explicitly remember Mr. Little having a nightmare, she does not believe he suffers from nightmares. In testimony, she reported being a heavy sleeper and not recalling her husband waking her to tell her about a nightmare. This is consistent with their relationship as reported to the Board fairly openly – Mrs. Little is aware that Mr. Little takes extreme measures to shield her from how greatly he suffers, and he himself admits to not sharing much with her at all. This is common in those with PTSD and of course cannot be held against him in the decision of fitness for duty. The severity of his symptoms is made clear by plenty of other forms of evidence, and the obsession with whether or not his wife remembers nightmares is mystifying. Nightmares are far from the only symptom of PTSD, and as made clear previously in this brief, Mr. Little displayed and currently displays symptoms in all categories of the diagnostic criteria.
V. The Formal PEB’s characterization of Mr. Little’s ability to maintain civilian employment was erroneous because it did not apply standards for making an unfitness determination per SECNAVINST 1850.4E
The findings of the Informal and Formal PEBs (as well as subsequent findings by the CORB and BCNR) place great weight on Mr. Little’s civilian employment. At the time of the PEB, Mr. Little worked with great accommodation as a Legislative Director and Registered Lobbyist for the Association of the United States Navy (AUSN). As written above, the testimonies of RADM Hall and MCPO Niblack, both of whom worked with him at the time, made it very clear that Mr. Little’s employment could not be likened to the duties of an ABH2, it was therefore erroneous for the FPEB to rely on it.
SECNAVINST 1850.4E directs the PEB to determine whether the member can reasonably perform his or her duties when making a finding of unfitness: “The sole standard to be used in making determinations of physical disability as a basis for retirement or separation is Unfitness to perform the duties of office, grade, rank or rating because of disease or injury incurred or aggravated while entitled to basic pay. Each case is considered by relating the nature and degree of physical disability of the member to the requirements and duties that member may reasonably be expected to perform in his or her office, grade, rank or rating.” This determination is to be based upon a preponderance of the evidence.
Mr. Little’s civilian employment and his volunteer work assisting veterans understand potential available health benefits cannot justly outweigh the great volume of evidence proving his severely disabling combat-related PTSD and Depressive Disorderprevented him from functioning as an ABH2 – two completely different roles. In applying the “sole standard” above, the PEB had a duty to determine whether Mr. Little could perform his duties as an ABH2. The oral testimonies made it clear that he could not. RADM Hall was adamant that while he respected Mr. Little and wanted him to succeed, that was only possible with incredible accommodation for his disabilities. There is no flight deck in the world where an ABH2 can work from home. The oral testimony of Christopher Slawinski, a colleague at AUSN and Naval veteran with experience on the flight deck, addressed the fact that Mr. Little’s tendency to be triggered easily leading to interpersonal issues would make even a classroom drilling situation an impossibility.
The PEB had a duty to determine whether Mr. Little could serve in the Navy, not to dissect evidence in an attempt to prove that he was able to hold civilian employment as a proxy to military service. There was no parallel between the work Mr. Little was doing at the time and the duties of an ABH2. Placing any weight on this ignored the clear standards set out by SECNAVINST1850.4E and violated the Navy’s duty to make an unfitness determination in the best interest of the health and safety of not only Mr. Little but every other sailor on the flight deck.
Mrs. Little’s statement additionally establishes that Mr. Little’s current symptomology meets and most likely exceeds the 30% disabling threshold required for medical retirement, with specific regard to his ability to hold any form of standard employment. She writes that even with the health improvements from Ketamine and SGB treatments, Mr. Little is extremely limited in terms of employment. Despite pursuing treatment continuously since the time of his PEB, Mr. Little is now confined to working from home exclusively.
We ask that the BCNR keep this in mind when reviewing this case: Mr. Little was a sailor who truly and deeply loved serving his country in the United States Navy, and it took the cripplingly debilitating effects of his PTSD and Depressive Disorder to force him into the realization that he could no longer do so. The day this man admitted to himself that he could no longer serve on a flight deck was one of the worst of his life, which is notable given what he has been through. The insinuations made during the Formal PEB hearing that perhaps he was only bringing up mental health symptoms to avoid discharge for weight failure were some of the most egregious made throughout this case. As Mr. Little corrected that particular board member, he had been attempting to gain recognition of his PTSD and Depressive Disorder from the Navy long before he fell out of weight standards. An arduous course of medication trials in attempts to quell the symptoms left him struggling with weight despite extreme dieting and exercise regimens. Mr. Little made every attempt to continue serving all while fighting for his life, and now deserves at the very least recognition of the PTSD and Depressive Disorder his service left him with.
VI. Following the failures of the Formal PEB, Mr. Little suffered subsequent error and injustice at the BCNR and CORB levels.
Both the CORB and BCNR decisions overlook the standard to be applied in a determination of fitness, which is an inability to perform the duties of his/her office, grade, rank, or rating. Both rely on Mr. Little’s civilian employment, in a misguided attempt to create a parallel between this and continued military service. Even the CORB rationale that Mr. Little was “capable of serving in a reserve shore command that involves clerical duties” is illogical, as at the time Mr. Little was given incredible accommodations to manage his debilitating PTSD and Depressive Disorder, including being allowed to work from home.
VII. If Mr. Little had been appropriately transferred to the TDRL, his five years would be at an end and he would undeniably be found unfit for duty.
As aforementioned, Mr. Little should have been transferred to the TDRL rather than into the IRR per SECNAVINST 1850.4E. If Mr. Little had been placed on the TDRL following his PEB, the five years of monitoring his condition would be expired. His condition has worsened over that period. Despite pursuing the most effective treatment options over those five years, he is no longer able to work except from home. He has also been unable to continue his nonprofit work helping his fellow veterans understand health benefits available to them. He has been lucky to find a form of employment that allows him to continue working exclusively from home, but his disabilities are at this point so severe that even this is done with very generous allowances for time off and medical care. Mr. Little addresses this in a new statement submitted along with this request for reconsideration. Overall, he is given 280 hours (35 days) a year for medical appointments alone. This along with the incredible flexibility he is given in his daily schedule to accommodate everything from sleep disturbances to panic attacks far exceed any accommodations that would be provided were he still serving in the Navy today, even if on shore duty. With a recently updated VA Disability Rating Decision evaluating his PTSD and Depressive Disorder as 100% disabling, Mr. Little could not possibly be found fit for duty were he coming off of the TDRLtoday. He would exceed the criteria for permanent disability retirement and we therefor ask that this Board find as such.
REQUEST FOR RELIEF
Again, we ask that the Board view this case in light of the Hagel Memo and give full evidentiary weight to the statements of Mr. Little, Mrs. Little, and the oral testimonies of his witnesses provided at the Formal Hearing of the PEB. We are providing compact discs containing the oral testimony as well as a written transcript and believe that it is more than worth reviewing as it is quite apparent that the Formal PEB gravely misrepresented the proceedings in its decision. Furthermore, we ask that in making its final determination the Board uphold the true meaning of a “preponderance of the evidence” to mean that the evidence tends to prove one side of a disputed fact more than the other. The burden upon Mr. Little is only to show that the evidence makes it “more likely than not” that he was and is unfit for duty due to his combat-related PTSD and Depressive Disorder, entitling him to permanent disability retirement. We believe that the collective evidence more than proves this and ask the BCNR to make the following findings:
• The FPEB erred in its application of the legal standard for finding fitness/unfitness for duty. The overwhelming weight of the evidence was in favor of unfitness and the FPEB’sfinding of fitness was in error. (See Argument II).
• The FPEB erred in not considering the combined effects of PTSD and Depressive Disorder. (See Argument IIa.)
• The FPEB committed error in relying on irrelevant evidence wile not attributing any weight to relevant evidence. (SeeArguments IIb, III).
• The FPEB erred in ignoring the severity of Mr. Little’s symptoms as evidenced by the MEB and VA ratings. (SeeArgument IIc).
• The FPEB erred in relying on “open source” information that was not evidence in Mr. Little’s case. (See Argument III).
• The FPEB erred in mischaracterizing the testimonies of witnesses. (See Argument IV).
• The FPEB did not comply with SECNAVINST 1856.4E in making the fitness determination. (See Argument V).
The only appropriate remedy for these errors is to immediately place Mr. Little on the Permanent Disability Retired list with a 100% effective as of the date the fitness for duty determination was erroneously made, 2016 April 25, with directions to DFAS to retroactively pay Mr. Little the corresponding retirement pay backdated to 2016 April 25 to present.
Attachments
1. Official Statement of ABH2 Little to the PEB dated 17 March 2016
2. Non-Medical Assessment, dated 28 October 2015
3. Official Statement of Michael Joseph Little, ABH2 (AW/SW), USN, dated 10 January 2015
4. Formal PEB Hearing Oral Testimony Recordings; Formal PEB Hearing Oral Testimony Transcript
5. MEB NARSUM, dated 14 OCT 2015
6. Formal PEB Rationale ICO Little, Michael J, ABH2, USN
7. Statement of Elizabeth Ann Little, dated 22 OCT 2021.
8. New Statement of Michael Joseph Little.
9. VA Rating Decision, dated 19 February 2020
2
Mr. Little first suffered an injustice when the Navy failed to promptly identify his PTSD symptomology and at the very least place him on the Temporary Disability Retired List (TDRL) upon completion of his deployment to Afghanistan or soon thereafter. As he has attested repeatedly, by August 2009 he was unable to carry out his duties as an ABH2. At that point, the Navy erred by not referring him for medical evaluation and processing him through the Integrated Disability Evaluation System (IDES). Time and time again over the following decade, Mr. Little endured multiple errors and injustices by Navy leadership as he fought for recognition of the symptoms that had changed him irrevocably but were continuously ignored by the only people who could help him.
When he finally did receive a medical evaluation, the Formal Physical Evaluation Board erred in its application of the permanent disability retirement standard. This request for reconsideration will address that standard and how Mr. Little has either met or exceeded its criteria since 2009. We will review the timeline of errors and injustices that have left Mr. Little without recognition or assistance from the United States Navy despite the mental wounds incurred by his service to it. We respectfully request that the Board keep three points in mind while reviewing Mr. Little’s case:
1. The Hagel Memo requires that the Board give liberal consideration to Mr. Little’s request for change to permanent disability retirement due to his PTSD.
The 25 August 2017 Department of Defense Memorandum providing Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of the Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment (“Clarifying Guidance”) provides that veterans discharged prior to implementation of heightened screening measures “may be the victim of injustice because commanders fully informed of such conditions and causal relationships today may opt for a less prejudicial discharge to ensure the veteran retains certain benefits, such as medical care.” The memorandum notes that external sources of evidence to include lay statements from family and peers are to be considered with equal weight, and specifies that liberal consideration be given to veterans petitioning for discharge relief when the application is based in whole or in part on matters relating to mental health conditions including PTSD.
Mr. Little went through the IDES process before the Navy had the deeper understanding of PTSD that it does today. In his submissions to the Physical Evaluation Board (PEB) and BCNR, Mr. Little provided numerous personal statements as well as lay statements of others with evidence that has been routinely ignored. We ask that the Board review that evidence along with new evidence offered in this brief with the liberal consideration required by the Clarifying Guidance.
2. Mr. Little’s PTSD and Depressive Disorder are combat-related injuries per SECNAVINST 1850.4E.
26 U.S.C. 104(b)(3) defines a combat-related injury as personal injury or sickness incurred as the result of armed conflict, amongst other things. SECNAVINST 1850.4E instructs that there must be a definite causal relationship between the armed conflict and the resulting unfitting disability, specifying that armed conflict includes a war, expedition, occupation of an area or territory, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action, riot, or any other action in which service members are engaged with a hostile or belligerent nation, faction, force, or terrorists. Mr. Little suffered psychological injury, physical and mental abuse and feared for his life on a daily basis while deployed to Camp Bucca, Iraq in 2008 and Afghanistan in 2009. His resultant PTSD and Depressive Disorder are, therefore,combat-related injuries.
3. The burden of proof required of Mr. Little in this request for reconsideration is a preponderance of the evidence, not beyond reasonable doubt.
Per 32 CFR 723.3 and SECNAVINST 5420.193, an applicant for correction of naval records need only present sufficient evidence to demonstrate the existence of probable material error or injustice. SECNAVINST 1850.4E clarifies that the burden of proof required of applicants to the BCNR in cases of fitness or unfitness due to physical disability is a preponderance of the evidence. As we will review below, Mr. Little has exceeded thisstandard by providing substantial evidence of how his combat-related PTSD and Depressive Disorder rendered him unfit for continued duty and qualify him for permanent disability retirement.
In his arduous journey to receive the permanent disability retirement he is owed, Mr. Little has suffered numerous injustices, beginning with having to repeatedly try to convince those who are meant to help him that he is telling the truth. He is hardly the first service member to be unable to disclose certain information about his deployments. It is egregious that people ranging from medical personnel to this Board itself have called into question hisintegrity time and again. We ask that while reviewing this request, the Board strive to view this case as one of a combat veteran with debilitating invisible wounds of war who was abandoned by his command, ignored by the presiding members of a Formal PEB hearing, and ultimately let down by the service to which he gave everything.
ARGUMENT
I. The PEB committed an error by failing to find that Mr. Little qualified for permanent disability retirement or, in the alternative, placing him on the temporary disability retirement list.
Mr. Little met the criteria for unfitness at the time of his PEBin 2016. Per SECNAVINST 1850.4E, the sole standard to be used in making determinations of physical disability as a basis for retirement or separation is unfitness to perform the duties of office, grade, rank or rating because of disease or injury incurred or aggravated while entitled to basic pay. It further instructs that “If a member's nature of disability does not meet the criteria for permanent retirement set forth in paragraph 3705 and 10 U.S.C1202, place the member on the TDRL in accordance with 10 U.S.C. 1202 or 1205, as appropriate. Also, place members whose disabilities are unstable on the TDRL, if otherwise qualified.”
Both the Informal PEB (IPEB) and Formal PEB (FPEB)concluded that Mr. Little was fit to continue on active dutybecause his PTSD was not severe enough. Even if these boards had adequate evidence to support a finding that Mr. Little did not qualify for permanent disability retirement, he certainly should have been placed on the TDRL rather than found fit and left in limbo in the IRR. The existence of Mr. Little’s PTSD and Depressive Disorder were never in contention despite some apparent confusion by the members of the FPEB. The worst-case scenario for Mr. Little should have been a determination that his PTSD and Depressive Disorder, along with Migraines, were not of a permanent and stable nature per §3706. It would not have been wholly unfathomable, as with many cases involving mental health, for the Board to have considered his conditions potentially “unstable when the preponderance of medical evidence establishes that accepted medical principles indicates the severity of the condition will change within the next 5 years so as to result in an increase or decrease of the disability rating percentage or a finding of Fit.”
The complete disregard of substantial evidence establishing a severe case of PTSD and Depressive Disorder robbed Mr. Little of his ability to serve and a finding of fitness for duty are, on the other hand, quite difficult to comprehend.
II. The Informal and Formal PEBs erred in ignoring the great weight of the evidence presented by the MEB.
The MEB Narrative Summary (NARSUM) was filled with more than enough evidence that Mr. Little met and exceeded the above criteria. Unlike the members of the Formal PEB, the MEB consists of two or more physicians, one of whom “must have detailed knowledge of the standards pertaining to medical fitness retention standards, the disposition of patients, and disability separation processing.” Furthermore, in cases such as Mr. Little’s involving behavioral health, the MEB must include a thorough behavioral health diagnosis and the signature of at least one psychiatrist or psychologist with a doctorate in psychology.
The reasoning and conclusions of the MEB were, therefore,by experts qualified in assessing PTSD and Depressive Disorder, unlike those who made up the Formal PEB, amongst whom the only medical professional was a Navy occupational doctor. Weask that the Board revisit the NARSUM in reviewing Mr. Little’s case and keep in mind that it was written with highly specialized knowledge of his conditions and their effects.
a. The FPEB erred in not complying with the requirements of DODI 1332.18 to consider both of Mr. Little’s behavioral health diagnoses of PTSD and Depressive Disorder, and their combined effects on his fitness for duty.
Per DODI 1332.18, the MEB documents whether the service member has a medical conditions, whether singularly, collectively or through combined effect, that will prevent him from reasonably performing the duties of his office, grade, rank, or rating. If the service member cannot perform the duties of his office, grade, rank, or rating, the MEB refers the case to the PEB. It is our contention that in failing to consider Depressive Disorder, the FPEB did not meet this requirement to consider the combined and chronic effects of PTSD and Depressive Disorder. While we do not at all concede the point that Mr. Little’s PTSD is not on its own unfitting, even if the PEB came to that conclusion they failed to consider that the combined effects of both PTSD and Depressive Disorder have unquestionably left Mr. Little unable to perform the duties of an ABH2.
The MEB concluded that the “chronic nature” of Mr. Little’s PTSD and Depressive Disorder made it unlikely that he would improve sufficiently in the next five years to meet retention standards. They rated both PTSD and Depressive Disorder individually as diagnoses preventing Mr. Little from meeting retention standards in accordance with SECNAVINST 1850.4E. The PEB, however, did not even consider Mr. Little’s Depressive Disorder when making its determination, instead only assessing PTSD and Migraines. The MEB assessed Mr. Little for Migraines and Chronic Lumbar Strain in addition to PTSD and Depressive Disorder, but did not rate either as unfitting. Furthermore, neither of the latter were mentioned in the IPEB findings making it wholly unclear why the FPEBfailed to even mention Depressive Disorder and instead chose to focus on Migraines.
DODI 1332.18 identifies relevant evidence in assessing fitness of a member referred for a chronic condition, stating “[W]hen a service member is referred for disability evaluation under circumstances other than as described in paragraph 3.a. of this appendix, an evaluation of the service member’s performance of duty by supervisors may more accurately reflect the capacity to perform. Supervisors may include letters, efficiency reports, credential reports, status of physician medical privileges, or personal testimony of the service member’s performance of duty to provide evidence of the service member’s ability to perform his or her duties.” To clarify, Mr. Little was referred for a chronic condition, as the MEB repeatedly references in the NARSUM. This means that even if the PEB concluded that the medical evaluation alone did not justify a finding of unfitness and permanent disability retirement, they were bound to consider additional forms of evidence as listed in section b. In Mr. Little’s case, it appears that the FPEB members misunderstood or simply missed a great deal of evidence supporting an unfitness determination in the form of supervisor letters and oral testimony, as well as the member’s own personal letters and testimony.
b. Mr. Little’s NARSUM was inadequate and therefor did not serve its intended evidentiary purpose in a determination of unfitness.
Mr. Little suffered an injustice at this point as his Non-Medical Assessment (NMA) should have been a crucial piece of evidence to be considered in determining his unfitness. Per SECNAVINST 1850.4E, “[T]his document is crucial in summarizing the member’s limitations from the perspective of the commanding officer. Given the disability evaluation system’s emphasis on performance, the NMA’s ability to highlight the sailor or Marine’s ability/inability to execute duties as required of his/her rating/rank and the reality of their contribution is critical in portraying a service member’s limitations. Capturing the command’s observations as to how the service member’s impairments have or have not impacted upon the member’s ability to function within the command through concise and succinct statements greatly assists the voting members in determining the Fit/Unfit potential of the member.”
Mr. Little’s NMA was written by a commanding officer who, by his own admission, had “not had the pleasure of getting to know ABH2 Little or seeing his work ethic” and based his entire opinion in what would form a crucial piece of evidence upon Mr. Little’s service record. This CO does nonetheless state that Mr. Little “struggled to adapt to being back home due to multiple exposures to invisible wounds,” conceding that Mr. Little was no longer the “great sailor with wonderful potential prior to his injuries.” The issue arises with the recommendation for retention, which was based on Mr. Little’s own confusion surrounding his fitness and abilities at that point. Mr. Little believed he could remain in the Navy because he thought that was what he was supposed to say and do as a good sailor, so that is what he told his CO which was the basis of the CO’s recommendation. Mr. Little, however, was clearly not competent to diagnose his own mental health disabilities of PTSD and Depressive Disorder, and he was at that time navigating acceptance of the fact that he was no longer the man or sailor he was before his multiple tours of duty. It was the Navy’s duty to identify his unfitness for duty and afford him the mental health assistance he required.
c. The PEB erred in its findings of fitness because it ignored the MEB’s conclusions based on the VA rating criteria.
The MEB’s supporting evidence for finding PTSD and Depressive Disorder to be unfitting conditions, in combination with the 09 APR 2014 VA Disability Rating Decision awarding a 70% rating for PTSD and Depressive Disorder, was ample proof for the PEB to grant Mr. Little permanent disability retirement, or at the very least placement on TDRL. While the PEB is not bound by the VA Rating Decisions, it is instructed to use the VA Schedule for Rating Disabilities (VASRD) per SECANVINST 1850.4E §3802 once a member is found unfit. Since a member such as Mr. Little would be unfit should his injuries leave him 30% disabled or more per the VASRD guidelines, it is especially difficult to comprehend how the he was found fit for duty at the PEB level.
The VASRD diagnostic requirements for PTSD include (1) a stressor (2) intrusive recollection (3) avoidance (4) negative alternations in cognition and mood (5) hyper-arousal (6) duration (7) functional significance. The MEB addressed the symptoms in the NARSUM based upon a VA Disability Benefits Questionnaire (DBQ) for PSYCH PTSD Exam dated 29 SEP 2015 diagnosing Mr. Little with PTSD and Unspecified Depressive Disorder.
(1) Stressor: The MEB directly attributed Mr. Little’s PTSD to his experiences of “moral injury, physical and mental abuse and feared for his life on a daily basis” during his 2008 deployment to Camp Bucca, Iraq. His reports of not only witnessing riots but being in the midst of them have been detailed repeatedly in his medical notes as well as his personal statements.
(2) Intrusive Reminders: The MEB mentioned triggers leading to intrusive reminders about his deployments, specifically the smell of feces and hearing people speaking Arabic. The latter was sadly confirmed by Mr. Little’s witnessing of a car crash when the driver began speaking Arabic and he experienced a full-blown PTSD flashback panic attack that required hospitalization. The MEB also noted nightmares about his deployment experiences.
(3) Avoidance: The MEB mentions avoidance of situations such as crowds.
(4) Negative alterations in cognition and mood: The MEB references that Mr. Little reported suicidal thoughts to his Naval Reserve command in 2010. In lieu of receiving appropriate assistance and
(5) Hyper-arousal: The MEB mentions hypervigilance “such that he reported feeling watchful and easily startled, particularly by loud noises.”
(6) Duration: At the time of the PEB, Mr. Little’s PTSD symptoms had persisted and worsened over the course of six years. The VASRD requires presence of symptoms for more than one month.
(7) Functional Significance: The MEB made it very clear that “Despite multi-modal therapies his PTSD and depression prevent him from performing the requirements of his rank and Service.”
The above symptoms are all textbook PTSD per the VASRD and more than establish a PTSD disability rating of far greater than 30% to warrant a finding of unfitness. Again, even if both levels of the PEB agreed that Mr. Little did not yet meet that requirement for a finding of unfitness, the above evidence unequivocally established a case of PTSD that at the very least required placement on TDRL for a five-year period of monitoring symptoms. To be clear, this would contradict the MEB’s conclusion that the “chronic recurrent nature” of Mr. Little’s symptoms made it “unlikely that the SM will improve sufficiently in the next 5 years to meet retention standards.”
III. The Formal PEB Rationale erred in grossly misconstruingthe evidence that was available at the time.
In its analysis, the Formal PEB questioned and downplayed the horrific traumas Mr. Little endured on his deployments.
The Formal PEB stated Mr. Little “witnessed his colleagues treat detainees poorly, and he also suffered discrimination and isolation from his colleagues as he was one of the few Sailors in an Army unit.” This, however, was an unjust understatement and contained factual errors.
As made clear in oral testimony, Mr. Little did not just “witness his colleagues treat detainees poorly.” His command in Camp Bucca was relieved because of abuse of detainees, and at the time of the hearing Mr. Little testified that two of his shipmates were still in prison and two were dishonorably discharged as a result ofdetainee abuse. Mr. Little was not discriminated against because he was a Sailor serving in an Army unit, but rather because he attempted to speak out against this criminal treatment of detainees. This was a factual inaccuracy by the Formal PEB.
Further, on his second tour, the one in Afghanistan, he was completely alienated by his peers for nine months due to his position (not because he was a sailor in an Army unit), which required him to determine punishments for detainees. When detainees offered intelligence to avoid punishment, Mr. Little would be forced by his superiors to let them walk free with no punishment. In oral testimony, he cited having to look a female peer in the face after an assault by a detainee left her with 18 stitches across her head and tell her that her attacker would not be punished. The mental distress of doing this once, let alonerepeatedly for nine months, was astronomical and FPEB failed to mention this at all and mischaracterized it in its attempt to summarize the evidence.
Instead, the Formal PEB cited a Post-Deployment Survey of 20 APR 2009 in which Mr. Little indicated “That he did not experience nightmares, difficulty sleeping, inappropriate anger, feelings of depression, or anxiety since returning CONUS.” This demonstrates nothing in terms of Mr. Little’s PTSD, but does demonstrate the Navy’s reprehensible handling of mental health at the time. This survey was given one month after Mr. Little returned from his tour in Camp Bucca. Neither the VASRD nor the DSM manuals require that symptoms of PTSD be present one month after trauma exposure. In fact, it is exceedingly common for onset of symptoms to be significantly delayed. This makes this particular argument of the Formal PEB completely moot, andis an excellent reminder of why we now have the Hagel Memo to remind reviewing agencies to consider petitions involving mental health with compassion and a deeper understanding for the chaotic nature of these invisible wounds. Notably, the Formal PEB later cites another mental health survey given on 20 OCT 2009 prior to Mr. Little’s second IA tour, pointing erroneously to the fact that Mr. Little “had not received any mental health counseling in the past 3 years, taken any mental health medications in the last 3 years, and did not have any thoughts of suicide, homicide, or hallucinations.” This is, again, deeply misguided logic, as Mr. Little had only been through his traumatic experience in Iraq within the preceding year. Looking to the past three years as evidence of a lack of PTSD symptomology really has no bearingbecause over those three years he was not yet traumatized because he had not yet been to Iraq, then was in Iraq, then was merely months out of Iraq.
The FPEB goes on to unjustly question the timeline of Mr. Little’s Iraq deployment with “known events that have been documented in numerous open sources,” but does not cite those sources. This has already been addressed eloquently in the Petition for Relief dated 1 JUN 2016 and frankly is so plainly erroneous and unjusty that we will refrain from addressing it at length yet again. The Hagel Memo requires Mr. Little’s personal accounts of what he experienced in Iraq and Afghanistan, which have been validated by those who served with him in peer statements and in the media, to be taken as true.
IV. The Formal PEB erred in factually misrepresenting oral testimony in its Rationale.
Possibly the most erroneous misrepresentation made by the Formal PEB is the assertion that Mr. Little’s supervisors and peers testified that his civilian work performance was not only adequate enough to suggest retention in the Navy, but that he was thriving, because the testimony was exactly the opposite.
The PEB cites RADM Hall and MCPO Niblack as singing Mr. Little’s praises, while this could not be further from the points each tried to make. We have included compact discs with recordings as well as a transcript of the oral proceedings and beseech the Board to review them. We believe that the contents are crucial evidence proving the error and injustice made in denying Mr. Little permanent disability retirement. The following evidence is taken from the recordings.
MCPO Niblack testified in the formal hearing that it was quite obvious to him that Mr. Little’s IA tour had affected him, and that he had to work very hard to earn Mr. Little’s trust. MCPONiblack stated that Mr. Little really only began to open up upon learning that Niblack himself had been to Afghanistan. MCPONiblack did state that it was difficult to discuss his friend’s shortcomings in public, but overall painted a very clear picture of how deeply Mr. Little suffers daily.
Regarding symptoms of PTSD, MCPO Niblack stated that Mr. Little started out in his civilian job with great enthusiasm for his work, but all of a sudden began having interpersonal troubles and was unable to do his job, leading to his resignation. Niblackreported fielding many complaint calls from civilians regarding Mr. Little, and said that he tries to diffuse the friction as best possible. MCPO Niblack also shared with the Board that there are times when Mr. Little could not come to work because of headaches, nightmares, sleep deprivation, and so on, and alsotestified to having taken Mr. Little to the hospital. He poignantly observed that it is very difficult for Mr. Little to not be at his best and that he attempts to hide it by not coming to work, paralleling this to the lengths to which Mr. Little goes in order to hide his symptoms from his wife. When asked, MCPO Niblack stated he would neither take Mr. Little to Afghanistan nor have him on a flight deck, aptly describing aviation as a “zero defect game.”
The Board similarly misrepresented the testimony of RADM Hall, saying that he “portrayed the member as extremely capable.” RADM Hall, an aviator and Air Boss, began his testimony by describing the duties of an ABH2. He described them as leaders of the flight deck in charge of the safe launch and landing of aircraft, and attested that the job requires 100% attention to detail, environment, and surroundings at all times during a 14-hour day. He testified that even a headache would be a tremendous hindrance, affecting attention, vision, response time, and length of time one could spend on the flight deck. He stated at the end of testimony that Mr. Little did not belong on a flight deck.
RADM Hall went on to describe Mr. Little’s PTSD, saying his symptoms were very consistent. He stated that triggering events could be anything from work to family to nothing whatsoever, and upon looking over at Mr. Little said that he could see the warning signs in him at that very moment as Mr. Little fidgeted and attempted to sternly focus. Perhaps most importantly, RADM Hall made it very clear that he had no problem making accommodations for Mr. Little in their working relationship, saying that his work performance was based not on hours in an office but on Mr. Little’s interactions with Congress. This is an extremely important point.
Even if Mr. Little were still able to hold this civilian job, it had no relevance as to whether he could continue to perform the duties of an ABH2. There is no place in the Evaluation and Counseling forms where a sailor is ranked based on their ability to make interpersonal connections. They are expected to show up on time every day and do their job. RADM Hall made it exceedingly clear that Mr. Little was routinely accommodated and staff was educated on his condition to make allowances for him. Before ending his testimony, RADM Hall addressed the question about a supportive letter he had previously written, saying that there was a time difference and that Mr. Little was no longer the person described therein.
The overall impression left by MCPO Niblack and RADM Hall, as well as every other person testifying was that Mr. Little was a formerly excellent worker who currently struggled. He was described as often absent and unpredictable. The most confusing part of this case seems to be the fact that Mr. Little tried valiantly for years to push through his PTSD symptoms rather than just succumbing to their effects. It seems that from the PEB level onwards, this has been held against him. At times it has essentially been suggested that he should have recognized his symptoms promptly and identified his disability himself, while this duty in fact lies with the Navy. The standard to be applied here is that of fitness or unfitness for duty. None of the testimony presented suggested that Mr. Little came anywhere close to being capable of the primary duties of an ABH2. The FPEB’s finding to the contrary was clearly erroneous. The testimony did however, make it very clear that Mr. Little’s PTSD and Depressive Disorder made him unable to continue the reasonable performance of duties per SECNAVINST 1850.4E § 3304.
The testimony of Mr. Little’s wife, Elizabeth Ann Little, was wildly misrepresented in the FPEB decision. To start, there is no burden on Mrs. Little to professionally diagnose each symptom of PTS in her husband. In its Rationale, the Formal PEB describes her testimony as “particularly informative” as she “witnesses the member in a wider range of environments than his coworkers.” Mrs. Little has written a new statement addressing this and other issues with the Board’s characterization of her testimony. She reiterates in her letter that, as stated in oral proceedings, she works long hours as a corpsman, leaving by 0530 and does not return until around 1700 in the evening. This means that, contrary to the Board’s statement, she does not witness him in a wider range of environments than his co-workers. As she aptly points out, this case is to determine Mr. Little’s fitness for duty, so there is nothing more relevant than the observations of those co-workers and their impressions of his ability to function in a militaryenvironment. The most “particularly informative” testimony and evidence is that which supports the conclusion that his PTSD and Depressive Disorder have left him unable to fulfill his duties as an ABH2. Mrs. Little also contradicts the FPEB’s suggestion that because she could not explicitly remember Mr. Little having a nightmare, she does not believe he suffers from nightmares. In testimony, she reported being a heavy sleeper and not recalling her husband waking her to tell her about a nightmare. This is consistent with their relationship as reported to the Board fairly openly – Mrs. Little is aware that Mr. Little takes extreme measures to shield her from how greatly he suffers, and he himself admits to not sharing much with her at all. This is common in those with PTSD and of course cannot be held against him in the decision of fitness for duty. The severity of his symptoms is made clear by plenty of other forms of evidence, and the obsession with whether or not his wife remembers nightmares is mystifying. Nightmares are far from the only symptom of PTSD, and as made clear previously in this brief, Mr. Little displayed and currently displays symptoms in all categories of the diagnostic criteria.
V. The Formal PEB’s characterization of Mr. Little’s ability to maintain civilian employment was erroneous because it did not apply standards for making an unfitness determination per SECNAVINST 1850.4E
The findings of the Informal and Formal PEBs (as well as subsequent findings by the CORB and BCNR) place great weight on Mr. Little’s civilian employment. At the time of the PEB, Mr. Little worked with great accommodation as a Legislative Director and Registered Lobbyist for the Association of the United States Navy (AUSN). As written above, the testimonies of RADM Hall and MCPO Niblack, both of whom worked with him at the time, made it very clear that Mr. Little’s employment could not be likened to the duties of an ABH2, it was therefore erroneous for the FPEB to rely on it.
SECNAVINST 1850.4E directs the PEB to determine whether the member can reasonably perform his or her duties when making a finding of unfitness: “The sole standard to be used in making determinations of physical disability as a basis for retirement or separation is Unfitness to perform the duties of office, grade, rank or rating because of disease or injury incurred or aggravated while entitled to basic pay. Each case is considered by relating the nature and degree of physical disability of the member to the requirements and duties that member may reasonably be expected to perform in his or her office, grade, rank or rating.” This determination is to be based upon a preponderance of the evidence.
Mr. Little’s civilian employment and his volunteer work assisting veterans understand potential available health benefits cannot justly outweigh the great volume of evidence proving his severely disabling combat-related PTSD and Depressive Disorderprevented him from functioning as an ABH2 – two completely different roles. In applying the “sole standard” above, the PEB had a duty to determine whether Mr. Little could perform his duties as an ABH2. The oral testimonies made it clear that he could not. RADM Hall was adamant that while he respected Mr. Little and wanted him to succeed, that was only possible with incredible accommodation for his disabilities. There is no flight deck in the world where an ABH2 can work from home. The oral testimony of Christopher Slawinski, a colleague at AUSN and Naval veteran with experience on the flight deck, addressed the fact that Mr. Little’s tendency to be triggered easily leading to interpersonal issues would make even a classroom drilling situation an impossibility.
The PEB had a duty to determine whether Mr. Little could serve in the Navy, not to dissect evidence in an attempt to prove that he was able to hold civilian employment as a proxy to military service. There was no parallel between the work Mr. Little was doing at the time and the duties of an ABH2. Placing any weight on this ignored the clear standards set out by SECNAVINST1850.4E and violated the Navy’s duty to make an unfitness determination in the best interest of the health and safety of not only Mr. Little but every other sailor on the flight deck.
Mrs. Little’s statement additionally establishes that Mr. Little’s current symptomology meets and most likely exceeds the 30% disabling threshold required for medical retirement, with specific regard to his ability to hold any form of standard employment. She writes that even with the health improvements from Ketamine and SGB treatments, Mr. Little is extremely limited in terms of employment. Despite pursuing treatment continuously since the time of his PEB, Mr. Little is now confined to working from home exclusively.
We ask that the BCNR keep this in mind when reviewing this case: Mr. Little was a sailor who truly and deeply loved serving his country in the United States Navy, and it took the cripplingly debilitating effects of his PTSD and Depressive Disorder to force him into the realization that he could no longer do so. The day this man admitted to himself that he could no longer serve on a flight deck was one of the worst of his life, which is notable given what he has been through. The insinuations made during the Formal PEB hearing that perhaps he was only bringing up mental health symptoms to avoid discharge for weight failure were some of the most egregious made throughout this case. As Mr. Little corrected that particular board member, he had been attempting to gain recognition of his PTSD and Depressive Disorder from the Navy long before he fell out of weight standards. An arduous course of medication trials in attempts to quell the symptoms left him struggling with weight despite extreme dieting and exercise regimens. Mr. Little made every attempt to continue serving all while fighting for his life, and now deserves at the very least recognition of the PTSD and Depressive Disorder his service left him with.
VI. Following the failures of the Formal PEB, Mr. Little suffered subsequent error and injustice at the BCNR and CORB levels.
Both the CORB and BCNR decisions overlook the standard to be applied in a determination of fitness, which is an inability to perform the duties of his/her office, grade, rank, or rating. Both rely on Mr. Little’s civilian employment, in a misguided attempt to create a parallel between this and continued military service. Even the CORB rationale that Mr. Little was “capable of serving in a reserve shore command that involves clerical duties” is illogical, as at the time Mr. Little was given incredible accommodations to manage his debilitating PTSD and Depressive Disorder, including being allowed to work from home.
VII. If Mr. Little had been appropriately transferred to the TDRL, his five years would be at an end and he would undeniably be found unfit for duty.
As aforementioned, Mr. Little should have been transferred to the TDRL rather than into the IRR per SECNAVINST 1850.4E. If Mr. Little had been placed on the TDRL following his PEB, the five years of monitoring his condition would be expired. His condition has worsened over that period. Despite pursuing the most effective treatment options over those five years, he is no longer able to work except from home. He has also been unable to continue his nonprofit work helping his fellow veterans understand health benefits available to them. He has been lucky to find a form of employment that allows him to continue working exclusively from home, but his disabilities are at this point so severe that even this is done with very generous allowances for time off and medical care. Mr. Little addresses this in a new statement submitted along with this request for reconsideration. Overall, he is given 280 hours (35 days) a year for medical appointments alone. This along with the incredible flexibility he is given in his daily schedule to accommodate everything from sleep disturbances to panic attacks far exceed any accommodations that would be provided were he still serving in the Navy today, even if on shore duty. With a recently updated VA Disability Rating Decision evaluating his PTSD and Depressive Disorder as 100% disabling, Mr. Little could not possibly be found fit for duty were he coming off of the TDRLtoday. He would exceed the criteria for permanent disability retirement and we therefor ask that this Board find as such.
REQUEST FOR RELIEF
Again, we ask that the Board view this case in light of the Hagel Memo and give full evidentiary weight to the statements of Mr. Little, Mrs. Little, and the oral testimonies of his witnesses provided at the Formal Hearing of the PEB. We are providing compact discs containing the oral testimony as well as a written transcript and believe that it is more than worth reviewing as it is quite apparent that the Formal PEB gravely misrepresented the proceedings in its decision. Furthermore, we ask that in making its final determination the Board uphold the true meaning of a “preponderance of the evidence” to mean that the evidence tends to prove one side of a disputed fact more than the other. The burden upon Mr. Little is only to show that the evidence makes it “more likely than not” that he was and is unfit for duty due to his combat-related PTSD and Depressive Disorder, entitling him to permanent disability retirement. We believe that the collective evidence more than proves this and ask the BCNR to make the following findings:
• The FPEB erred in its application of the legal standard for finding fitness/unfitness for duty. The overwhelming weight of the evidence was in favor of unfitness and the FPEB’sfinding of fitness was in error. (See Argument II).
• The FPEB erred in not considering the combined effects of PTSD and Depressive Disorder. (See Argument IIa.)
• The FPEB committed error in relying on irrelevant evidence wile not attributing any weight to relevant evidence. (SeeArguments IIb, III).
• The FPEB erred in ignoring the severity of Mr. Little’s symptoms as evidenced by the MEB and VA ratings. (SeeArgument IIc).
• The FPEB erred in relying on “open source” information that was not evidence in Mr. Little’s case. (See Argument III).
• The FPEB erred in mischaracterizing the testimonies of witnesses. (See Argument IV).
• The FPEB did not comply with SECNAVINST 1856.4E in making the fitness determination. (See Argument V).
The only appropriate remedy for these errors is to immediately place Mr. Little on the Permanent Disability Retired list with a 100% effective as of the date the fitness for duty determination was erroneously made, 2016 April 25, with directions to DFAS to retroactively pay Mr. Little the corresponding retirement pay backdated to 2016 April 25 to present.
Attachments
1. Official Statement of ABH2 Little to the PEB dated 17 March 2016
2. Non-Medical Assessment, dated 28 October 2015
3. Official Statement of Michael Joseph Little, ABH2 (AW/SW), USN, dated 10 January 2015
4. Formal PEB Hearing Oral Testimony Recordings; Formal PEB Hearing Oral Testimony Transcript
5. MEB NARSUM, dated 14 OCT 2015
6. Formal PEB Rationale ICO Little, Michael J, ABH2, USN
7. Statement of Elizabeth Ann Little, dated 22 OCT 2021.
8. New Statement of Michael Joseph Little.
9. VA Rating Decision, dated 19 February 2020
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