PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           16 January 2003
	DOCKET NUMBER:   AR2002074729

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Marla J. N. Troup		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
records
	Exhibit B - Military Personnel Records (including
advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that her records be corrected to show she was medically retired in the rank of Sergeant First Class (SFC), E-7 with all due back pay and entitlements; that she be paid for the leave dates she was erroneously charged with; that she be paid for 7 days of active duty; and that she be paid the clothing allowance she was due.

3.  The applicant states that, had she been sent to a physical evaluation board (PEB) she would never have lost her E-7 for not serving her 2-year Active Guard/Reserve (AGR) obligation.  She was treated unfairly and was never counseled about going to see mental health professionals at Fort Sill, OK.  She was led to believe this was for a physical.  Supporting evidence is as listed on the DD Form 149.

4.  The applicant’s military records for this period of service are not available.  Information contained herein was obtained from alternate sources.

5.  The applicant entered active duty in an AGR status on 16 March 1997.

6.  A Medical Evaluation Board (MEB) Summary, dated 3 November 1998, shows that the applicant was referred for a fitness for duty evaluation after receiving treatment for an affective disorder since November 1997 and being diagnosed with a bipolar disorder about October 1998.  It was related in the history of her present illness that she was started on Prozac in November 1997.  In January 1998, she was hospitalized for three weeks on the partial hospitalization program for chronic heavy marijuana usage and in late March 1998 was hospitalized for one week after taking an overdose of about 20-25 Trazodone.  The applicant stated that she experienced a marked exacerbation of her symptoms about one month previously when her 11-year old daughter was injured in a freak automobile accident.  She was diagnosed with bipolar disorder, borderline personality disorder, Barrett's esophagus, non-proliferating fibrocystic disease of the left breast, simple cyst of the left kidney with macroscopic hematuria (a large amount of blood in the urine), pedunculated polyp of the midtransverse colon, and irritable bowel syndrome.

7.  Four recommendations were noted on the MEB Summary:  (1) The applicant was administered a Beck depression inventory on which she obtained a score consistent with severe depression; (2) that she continue on her current medication; (3) that she continue in frequent psychotherapy contacts with her psychiatrist in Dallas; and (4) that she was competent for pay purposes.  No recommendation was made that she be referred to a PEB although a Physical Profile, DA Form 3349, dated 30 November 1998 (but not signed by the approval authority) indicated she was unfit for military duty for the diagnoses listed in the MEB Summary.  A 24 November 1998 memorandum from the Chief, Psychiatry at Brooke Army Medical Center (BAMC) indicated that the applicant had been referred to an MEB and would be referred to a PEB; however, there is no DA Form 3947, Medical Evaluation Board Proceedings, available that verifies she actually went before an MEB.

8.  During the period 8 December 1998 through 8 July 1999, the applicant was apparently on convalescent leave under the authority of the Chief, Psychiatric Department, BAMC, who had completed the MEB Summary.  

9.  U. S. Total Army Personnel Command, Orders 194-103, dated 14 July 1999, promoted the applicant to SFC effective 1 August 1999.  These orders specified that she automatically incurred a 2-year AGR obligation prior to voluntary non-disability retirement.  It further specified that soldiers accepting a conditional promotion and are subsequently denied enrollment in the Advanced Noncommissioned Officer Course (ANCOC), declared a "no show," become academic failures or otherwise do not meet graduation requirements, will be reduced to the grade and rank held prior to the conditional promotion.

10.  The applicant's status between July 1999 and March 2000 is unknown.  In response to a 15 March 2000 memorandum from the Commander, 95th Division (not available), the Chief, Patient Affairs Branch, BAMC, indicated in a 17 March 2000 memorandum that a physician could not state that a soldier is no longer fit for military service.  A physician could, however, state that the soldier does not meet the standards for retention as outlined in Army Regulation 40-501, chapter 3.  As there were no physicians at BAMC having previously evaluated the applicant, she was deferred (sic) to Reynolds Army Community Hospital, Fort Sill, OK for evaluation as Reynolds Army Community Hospital was responsible for medical care for Army personnel stationed in the state of Oklahoma.  It would be their responsibility to determine if she did, or did not, meet retention standards and to initiate an MEB.

11.  By memorandum dated 30 March 2000, the 95th Division requested Darnell Army Community Hospital, Fort Hood, TX, schedule the applicant for a fit-for-duty examination in accordance with instructions received from Reynolds Army Hospital, Fort Sill, OK.  On 24 April 2000, the applicant requested that Reynolds Army Community Hospital release her medical records to Darnell Army Community Hospital.  She apparently was told on 26 April 2000 that Reynolds Army Community Hospital had no medical records on her.  (Conversation between an analyst with the Board and the PEB Liaison Office at Fort Hood, TX on 26 September 2002 revealed that that office had no record of the applicant.)

12.  In September 2000, the applicant accepted a unit administrator (also called military technician) position and she requested early release from the AGR program.

13.  On 7 November 2000, the applicant was released from active duty in pay grade E-6 under the provisions of Army Regulation 635-200, paragraph 5-16a(1) and intradepartmentally transferred, upon her request, to the U. S. Army Reserve Control Group (Reinforcement).  Her Certificate of Release or Discharge from Active Duty, DD Form 214, shows she completed 3 years, 7 months, and 22 days of creditable active service this period and a total of 13 years, 3 months, and 18 days of creditable active service.  Item 14 of her DD Form 214 shows that she completed no military education.  

14.  Effective 27 November 2000, the applicant was transferred to the 95th HH DE (acronym unknown), apparently as a drill sergeant, in Oklahoma City, OK.  

15.  Two DA Forms 31, Request and Authority for Leave, dated 3 December 2000 and signed by the applicant's battalion commander attest that the applicant did not take leave from 2 - 25 March 2000 and from 11 - 18 August 2000 but that she was erroneously charged leave for these dates.  The Staff Supervisory Assistant for the 95th Division verified the signature.  Annotated on one of the two related leave and earnings statements provided as supporting evidence is the note, "did not go to ANCOC cancelled the leave…"

16.  On 25 November 2000, the applicant filed a complaint with Senator Kay Bailey Hutchison alleging she was erroneously charged with 30 days leave, requesting orders be corrected assigning her to the 16th LSO (acronym unknown) so she could go back to work (and stating she would never have requested early release from the AGR if she knew she would be unemployed), requesting her DD Form 214 be corrected regarding her rank and schools, and that she be given an explanation regarding the PEB that was never completed.  (Conversation between an analyst with the Board and the U. S. Army Reserve Personnel Command, Regional Personnel Actions Division, Team 7 on             26 September 2002 revealed that office had no information to show the applicant had requested assignment to the 16th LSO.)

17.  The applicant may have filed another complaint alleging her brigade commander improperly referred her for a mental health evaluation.  On 18 March 2002, the Department of the Army Office of the Inspector General (DAIG) noted in a response to Senator Kay Bailey Hutchison that the applicant had sought medical treatment for medical and psychological problems after she and her daughter were involved in an automobile accident.  Initially, she was rendered a physical and determined to be not fit for duty.  An MEB was initiated; however, the doctor that rendered the initial MEB retired before its completion.  After returning from six months convalescent leave, she requested to reenlist.  However, because her last physical listed her as being unfit for retention, the MEB was re-initiated.  The mental health referral was a clinical referral as a follow up to an on-going medical board.  It was not a command directed mental health evaluation.  Her allegation was not substantiated.  Any response to the    25 November 2000 allegations is not available but it may have been the trigger to a case heard by the Board on 12 April 2001 (docket number AR2000051050).
18.  On 14 February 2001, a staff member at BAMC advised an analyst of this Board (in the processing of the earlier application) that she (the BAMC staff member) had personal knowledge of the applicant's medical processing and indicated the applicant had refused to provide pertinent medical records on which to process an MEB and the procedure could not go forward (apparently in reference to the 1998 MEB).

19.  A copy of the 14 February 2001 record of conversation was provided to the applicant for comment.  She stated that the BAMC staff member was correct in indicating she (the applicant) only had that one appointment at BAMC at which time she saw Colonel (Doctor) L___.  Colonel L___ told her to continue her civilian care.  She provided Colonel L___ with all the medical documents she had but she was never asked for more information nor was she contacted by anyone from that facility.

20.  A 10 December 2001 Department of Veterans Affairs (VA) Rating Decision shows the applicant was awarded a 30 percent disability rating for Barrett's esophagus/reflux disease, a 10 percent rating for post traumatic stress disorder (PTSD) (claimed as depression, bipolar disorder, and sexual trauma), and a zero percent rating for status post polyps of the colon.  Service connection for fibrocystic disease of the breast was denied.  The previous denial of service connection for microhematuria (a little amount of blood in the urine) and for chronic sinusitis was confirmed and continued.

21.  A letter dated 2 April 2002 from the North Texas Health Care System indicates the applicant had been under their psychiatric care since 2 February 1998 for PTSD and major depression, recurrent.

22.  The Defense Finance and Accounting Service's Master Military Pay Account shows the applicant was paid $295.20 in clothing maintenance allowance for the period 1 April 1998 - 31 March 1999, $320.60 in clothing maintenance allowance for the period 1 April 1999 - 31 March 2000, and $313.00 in clothing maintenance allowance for the period 1 April 2000 - 7 November 2000.

23.  Army Regulation 140-158, paragraph 4-10b(6) states that, except as otherwise provided in chapter 8, section IV, a soldier must be a graduate of the Noncommissioned Officer (NCOES) course or equivalency required for his or her current grade as required by paragraph 8-2.  Section IV, paragraph 8-19 states that a soldier may be promoted on the condition he or she enrolled in and successfully complete the course required for that grade.  If the grade requires the soldier to be a graduate of ANCOC, the soldier must be enrolled in the course within 12 months of the date of promotion and be a graduate of Advanced Noncommissioned Officers Course within 24 months of the Phase I completion date.  An extra 12 months will be allowed for completion of each phase of ANCOC for courses with more than two phases. 
24.  Army Regulation 635-200 governs the separation of enlisted soldiers on active duty.  Paragraph 5-16a(1) states that AGR soldiers may be voluntarily released from active duty, at their request, when such release is fully justified and determined to be in the best interest of the Government.

25.  Army Regulation 140-315 establishes policies and prescribes procedures for the employment, utilization, and separation of military technicians of the U. S. Army Reserve.  In pertinent part, it states that, if appointed after 8 December 1983, military technicians will maintain U. S. Army Reserve membership in the troop program unit in which employed. 

26.  The Department of Defense Financial Management Regulation (DODFMR), paragraph 290102B provides for cash clothing replacement allowances to be paid to enlisted members upon the anniversary month each successive year following the provision of an initial clothing allowance (paid upon initial enlistment).

27.  Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

28.  Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  

CONCLUSIONS:

1.  There is sufficient evidence to show the applicant should not have been charged leave for the periods 2 - 25 March 2000 and 11 - 18 August 2000.

2.  It cannot be determined what the applicant is referring to when she requests to be paid for 7 days of active duty.

3.  The evidence of record shows the applicant was paid clothing maintenance allowance at the proper times.

4.  It appears the applicant's conditional promotion to SFC, E-7 was revoked because she did not complete ANCOC as required (not because she did not serve 2 years on her AGR tour after promotion).

5.  For an unknown reason, the applicant failed to complete MEB processing in 1998.  She was again referred to an MEB in March 2000.  It appears from her   20 April 2000 request to have her medical records sent to Darnell Army Community Hospital that she was trying to proceed with the MEB.  It appears her medical records may have been lost.  However, it is noted that in September 2000 she voluntarily requested transfer out of the AGR and into a troop program unit.  Her request was approved and effective 27 November 2000 she was assigned to a unit, evidently as a drill sergeant.  According to the U. S. Army Reserve Personnel Command, it appears she successfully served in this assignment from December 2000 at least through January 2002.  If that is the case, it does not appear to the Board that she was unfit for duty and so it does not appear to be an inequity not to grant her request to show she was medically retired.  

6.  It is recognized that the applicant has received a disability rating from the VA. However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved (i.e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual may be found to be physically fit by the Army yet have one or more medical conditions rated as disabling by the VA.

7.  Regarding the applicant's complaint to Senator Kay Bailey Hutchison about being assigned to the 16th LSO, the Board has insufficient information to make a determination if this complaint is substantiated and should be corrected.  It is noted, however, that if the applicant feels well enough to request assignment to a troop program unit it also appears that she is well enough to be found fit for duty.

8.  It appears that the applicant's complaint to Senator Kay Bailey Hutchison about not being counseled about going to see mental health professionals at Fort Sill, OK, was fully answered in the DAIG's 18 March 2002 response to the Senator.

9.  In view of the foregoing, the applicant’s records should be corrected but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing the applicant did not take leave during the periods              2 - 25 March 2000 and 11 - 18 August 2000 and by paying her any and all due pay and allowances as a result of this correction.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__RVO__  __AAO  _  __MJNT__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

					__Raymond V. O’Connor, Jr.  _
					          CHAIRPERSON

INDEX

CASE ID	AR2002074729	
SUFFIX		
RECON		
DATE BOARDED	2003/01/16	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	PARTIAL GRANT	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.	108.00	
3.	133.05	
4.		
5.		
6.