APPLICANT REQUESTS:  In effect, the applicant requests physical disability retirement or separation.  

APPLICANT STATES:  That she received an honorable discharge, however, during her assignment as an active guard/reserve (AGR) soldier she was hospitalized and treated for manic-depression (bipolar disorder) and has been in treatment since September 1992.  When outprocessing, she did not receive a psychiatric examination, nor receive an opportunity to request a medical board (MEB), because she was told there was no time to change her discharge date.

The VA has awarded her 20 percent compensation for her disability and also 10 percent for a lower lumbar strain.  She maintains that her rights have been violated, that she should have received a medical discharge review.  She has a civilian attorney, and prior to litigation, would like to have her case addressed by the Board.   

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant has had previous Reserve and active duty service.  She also was on active duty from 7 October 1987 until 1 September 1988 when she was released from active duty because of a hardship and transferred to her Reserve unit.  She was on active duty from 16 September 1991 until 
her release on 30 April 1993 because of completion of her AGR tour.

A 9 October 1992 medical report indicates that the diagnoses of the applicant’s condition was deferred, however, her history and presentation were suggestive of pathology and/or dysthymia rather than frank bipolar disorder.

A 21 July 1993 medical record indicates that the applicant had bipolar disorder.

A 19 May 1995 VA mental disorders examination indicates that the applicant’s condition was diagnosed as meeting the criteria for bipolar disorder, depressed and episodic alcohol abuse, with a strong suspicion of a personality disorder, that she had carried a diagnosis of bipolar disorder since 1991, and had also been diagnosed with alcohol dependence.
A 10 January 1996 VA PTSD examination indicates that the applicant was suffering from PTSD secondary to sexual trauma and abusive relationship.

A 23 August 1996 VA mental disorder exam indicates that the applicant had no true manic episodes, that her stories of extended periods of mania were not particularly believable, and that based on her hospitalization in 1992 the most consistent diagnosis would have been of borderline personality disorder.  The examining doctor stated that the information gained from a 4 May 1996 exam indicates that the applicant’s correct diagnosis is PTSD and panic disorder, and a borderline personality disorder.

A 8 October 1996 VA rating decision indicates that the applicant was awarded a 50 percent service connected disability rating for post traumatic stress disorder (PTSD), that she had a 10 percent service connected rating for  bipolar disorder, filed for an increase, and was denied; and that it was determined that she did not have bipolar disorder but PTSD, and her condition evaluated as 50 percent disabling.

In the processing of this case an advisory opinion was obtained from the medical advisor to the DA Military Review Boards Agency (COPY ATTACHED).  That official stated that the applicant was not medically disqualified at the time of her separation. 

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, she must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.
Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

PTSD, an anxiety disorder, was not recognized as a
psychiatric disorder until 1980 with the publishing of
the Diagnostic and Statistical Manual of Mental
Disorders (DSM) III.  The condition is described in the
current DSM-IV, pages 424 through 427.  While PTSD
has only been categorized by psychiatrists as a distinct
diagnosis since 1980, it has, as early as the Civil War,
been described in psychological literature, variously
labeled as shell shock, soldier's heart, effect
syndrome, combat fatigue and traumatic neurosis.  During
the period of time in question, similar psychiatric
symptomatology was categorized as hysterical neurosis. 
Although the current label of PTSD is of rather recent
acceptance, the idea that catastrophes and tragedies can
result in persistent emotional and psychological
symptoms is common even among the lay public.  While
PTSD was not recognized as a specific illness at the
time of the applicant's separation from the service, the
fact that an individual might not be fit for further
military service because of psychosis, psychoneurosis,
or neurological disorders was outlined in Army
Regulation 40-501 which was in effect at the time of his
separation.  The Army here established standards and
procedures for determining fitness for retention and
utilized those procedures and standards in evaluating
individuals at that time.  The specific diagnostic label
given to an individual's condition a decade or more
after her discharge from the service may change, but any
change does not call into question the application of
then existing fitness standards.

Title 38, United States 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.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant's continued performance of duty raised a presumption of fitness which she has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with her separation.  The DA Military Review Boards Agency medical advisor states that she was medically qualified for separation and that a MEB was not required.  She has submitted no probative medical evidence to the contrary.

2.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

3.  The VA has determined that the applicant did not have a bipolar disorder, but PTSD and has rated her 50 percent disabling because of that condition.  Nonetheless,  the fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

4.  The award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation. The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before she can be medically retired or separated.

5.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

6.  The applicant has submitted neither probative evidence nor a convincing argument in support of her request. 

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

8.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director