MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 02 AUGUST 2001
         DOCKET NUMBER: AR2001058513

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

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Barbara J. Ellis		Member
Mr. John P. Infante		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: That she be reinstated on active duty.

APPLICANT STATES: That although she was told that she suffered from anxiety disorder, she feels that she does not have any of the symptoms. She is medically and physically fit for duty. She also states that her DD Form 214 shows an RE (reentry) code of 4R, meaning that she retired with 15 years of service. She joined the Army when she was 18 and is now 22. She obviously could not have had 15 years of service.

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

The applicant enlisted in the Army Reserve for 8 years on 22 November 1997. She was 18 years old.

She was discharged (placed on the temporary disability retired list (TDRL)) on 22 April 1999. She had 8 months and 29 days of service. Her reentry eligibility code on her DD Form 214 is 4R. Her separation code is SFK.

On 21 November 2000 a Physical Evaluation Board (PEB) described the applicant’s condition as major depressive disorder, single episode in full remission based on a TDRL examination (that examination is not available to the Board). The PEB found the applicant to be physically unfit, recommended a disability rating of zero percent, and that she be separated with severance pay. The applicant did not concur and demanded a formal hearing.

On 28 November 2000 the PEB at the Walter Reed Army Medical Center (WRAMC), informed her that an informal PEB had reviewed the report of her recent periodic medical examination and recommended that she be removed from the TDRL.

A 28 November 2000 medical report indicates that the applicant referred herself for evaluation for post traumatic stress disorder (PTSD). That report indicates that the applicant felt that her symptoms related to her rape and her subsequent PTSD symptoms had subsided and that she was again able to return to military duty. She reported her mood as very good. She had no problems with temper, and described her memory, concentration, and motivation as very good. Her appetite and energy were good. She denied persistent thoughts of rape. She stated that she previously had social phobia and avoided going out into public places, but stated that was no longer a problem. She felt positive and optimistic about the future. The impression given was that there was no evidence of current depressive symptoms.

A 21 December 2000 VA medical report indicates that the applicant was placed on temporary medical retirement following an assault, and a reevaluation was needed to certify that she was fit for duty. That report indicates that after her assault in Korea in August 1998 she developed symptoms consistent with a diagnosis of PTSD, and was placed on the TDRL for three years. With therapy and the passing of time, the symptoms resolved, except for occasional feelings of anxiety. The report indicates that the applicant indicated that she had always wanted to have a military career and still desired to do so. She stated that she did not associate the military with her violent attack and believed that she was fit for duty. The report indicated that the applicant was administered various tests, which indicated that she had a few anxiety symptoms but was not depressed or experiencing other symptoms of PTSD. The examining physician stated that she was fit for duty.

On 27 December 2000 a PEB reconsidered her case and determined that her condition had improved to the point that there was no functional impairment which would preclude satisfactory performance of her duty. The PEB found the applicant physically fit and that she should be returned to duty as fit. The applicant concurred.

On 11 January 2001 the Army Physical Disability Agency (USAPDA) modified the results of her PEB. It determined that she was physically unfit because of an anxiety disorder, with minimal symptoms that did not interfere with civilian adjustment. Major depression with past suicidal behavior was in remission. Soldier was at increased risk of recurrence of PTSD and major depression, if she returned to active duty. The PEB indicated that she was placed on the TDRL for major depression with suicidal behavior and PTSD secondary to an alleged rape. Her depressive symptoms were resolved, but she continued to experience anxiety symptoms on occasion, but did not meet diagnostic criteria for PTSD. The PTSD diagnosis was replaced by Anxiety Disorder (Some flashbacks, avoidance behavior, startle responses). The agency stated that she required continued psychiatric care although on an infrequent basis. She was working and had just started college. Risk of recurrence in the military setting was unacceptable in view of the circumstances leading to suicidal behavior requiring hospitalization. The agency found her physically unfit and recommended that the applicant be separated with a zero percent disability rating.

On 17 January 2001 the applicant concurred with the modification.

In a 7 February 2001 letter to the USAPDA the applicant stated that she wanted to change her election from agreeing with the modification to not agreeing with the modification, and accepting her letter as a written appeal. She stated that she did not suffer from any of the symptoms that were stated, and that she would undergo another physical examination. She stated that she understood the Army’s concern, but felt that she was more aware and more educated, and that was the best self defense. She stated that she wanted to return to active duty.

On 8 February 2001 the USAPDA informed her that her case was administratively complete and was considered closed. She was told that her letter had not provided any new medical evidence, and that her position was not new and had already been considered. She was also informed that had her case not been finalized, it would not have been changed based upon her comments.

In a 13 February 2001 statement the applicant’s office manager stated that the applicant performed her duties willingly, with confidence and professionalism. He stated that he knew of her past, and believed she did not suffer from any anxiety. He stated that she was a strong-willed and determined young woman. He supported her actions to become a member of the Armed Forces.

In a 15 February 2001 statement, her primary care doctor stated that the applicant had been seen at the VA Medical Center since November 2000, had been seen by a clinical psychologist and by herself to assess her readiness to return to active duty. Both that doctor and the psychologist felt that the applicant was fit for active duty.

On 20 February 2001 the USAPDA informed the applicant that it had received her 15 February 2001 letter with attachments, and because her case was finalized based upon her agreement with the agency’s revision, it could not take any further action in her case. The USAPDA again informed her on 26 February 2001 that her case was closed and had been finalized. She was informed that she could petition this Board for relief.

In a 15 March 2001 letter to the USAPDA, the clinical psychologist at the VA Medical Center in Salt Lake City stated that the applicant’s previous testing completed in December 2000 indicated that she had a few anxiety symptoms that were not prominent or clinically significant. At her request, she was administered the trauma symptom inventory test. The validity scale scores indicated that the applicant produced a valid profile, that she did not endorse measures of anxiety associated with PTSD, symptoms of anxiety or depression or problems with anger. She did not report symptoms of intrusive thoughts or nightmares or dissociation. She indicated that she was not expending energy to push painful thoughts or memories out of her mind. The psychologist stated that the applicant did not currently meet criteria for a diagnosis of PTSD or anxiety disorder. She stated that because the applicant had only occasional mild symptoms that fell within normal limits the applicant did not currently meet criteria for anxiety disorder, NOS (not otherwise specified). She no longer had symptoms of acute trauma, as is to be expected in most individuals exposed to trauma.

On 23 April 2001 she wrote an Air Force captain of the Psychiatric Department at WRAMC requesting his help [in being reinstated in the Army]. She recounted that she was under his care in October and November 1998 for major depression and PTSD due to a sexual assault that happened in Korea. In April 1999 she was placed on the TDRL, but was recently reevaluated for her disability. When she was admitted she signed herself in, but he gave her a profile stating that she was not to carry or use any weapons. She is now attending school and is interested in the ROTC program, but recruiters have informed her that she could not take any military science course without clearance from him [or some authority].

On 2 June 2001 the applicant stated that she had decided to agree with the [USAPDA] modification even though she did not agree, because she did not realize that it would be so difficult to go back into the Army. She only agreed to stop the process, not that she agreed with the results.

Army Regulation 40-501, chapter 3, gives the various medical conditions and physical defects which may render a soldier unfit for further service. Soldiers with conditions listed in that chapter who do not meet the required medical standards will be evaluated by a MEB and will be referred to a PEB. Anxiety disorders are one of those conditions listed in that chapter.

Army Regulation 635-40 provides for medical evaluation boards, which are convened to document a soldier’s medical status and duty limitations insofar as duty is affected by the soldier’s status. A decision is made as to the soldier’s medical qualifications for retention based on the criteria in AR 40-501, chapter 3. If the MEB determines the soldier does not meet retention standards, the board will recommend referral of the soldier to a PEB.

Physical evaluation boards are established to evaluate all cases of physical disability equitability for the soldier and the Army. It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of soldiers who are referred to the board; to evaluate the physical condition of the soldier against the physical requirements of the soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the soldier; and to make findings and recommendation to establish eligibility of a soldier to be separated or retired because of physical disability.

The USAPDA has the authority to review the actions of the PEB. The USAPDA may issue revised findings providing for a change in disposition of the soldier or change in the soldier’s disability rating. If the soldier concurs with the revised findings and recommendations, the USAPDA will approve the case for the Secretary of the Army and forward the case to the Total Army Personnel Command (PERSCOM) for final disposition.

Army Regulation 600-210 governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army. Paragraph 3-22 provides information concerning reentry eligibility (RE) codes, and states that those codes are used for identification of an enlistment processing procedure. RE 4R applies to a person who retired for length of service with 15 or more years of active federal service. RE 4 applies to a person separated from last period of service with a non-waivable disqualification, to include anyone with a DA imposed bar to reenlistment, or separated for any reason (except for length of
service retirement) with 18 or more years of service.

A separation program designator code (SPD)/Reentry (RE) Code cross reference table shows a RE code of 4 for a soldier separated with a separation code of SFK.

Section I of Chapter 4 contains waiver and nonwaiver enlistment criteria and prescribes procedures to initiate and process requests for waiver to meet basic enlistment qualifications. Paragraph 4-5 states in pertinent part that any applicant who was last separated or discharged from any component of the Armed Forces for medical reasons with or without disability for enlistment into the Regular Army or Army Reserve will require a waiver. That paragraph lists the documents required for waiver consideration. The approval authority for medical waivers is the Commanding General, U.S. Army Recruiting Command.

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

1. The applicant’s TDRL information is not available; nonetheless, there is no reason to doubt that the applicant did have major depression with past suicidal behavior, which is now in remission, as indicated on the 11 January 2001 revised PEB proceedings. The USAPDA determined that she was physically unfit because of anxiety disorder, stated that she continued to experience anxiety symptoms on occasion, and required continued psychiatric care, albeit infrequently. The applicant concurred with the findings and the recommendation that she be separated with severance pay, if otherwise qualified.

2. The fact that she has changed her mind and has received an opinion from a doctor, based on tests administered, that the applicant did not currently have anxiety disorder, is not itself reason to reverse the findings of the revised PEB. The Board recognizes that at times there will be an honest difference of opinion among physicians as to an individual’s medical condition. She has not shown to the satisfaction of this Board that the findings of the revised PEB are erroneous.

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

4. 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 that requirement.

5. 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.

NOTE: The Army Review Boards Agency at St. Louis will be requested to change the applicant’s DD Form 214 to show an RE code of 4 instead of 4R.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__RJW__ __BJE___ __JPI ___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001058513
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010802
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.03
2.	108.00
3.	177
4.
5.
6.