MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 07 AUGUST 2003
         DOCKET NUMBER: AR2002081272

         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
Ms. Gale J. Thomas		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas B Redfern III		Member
Ms. Mae M. Bullock		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: In effect, disability separation or retirement.

APPLICANT STATES: That she should have received a formal mental and physical examination prior to her separation, which she feels would have documented her mental and physical disabilities that existed prior to her discharge. She states that she was sexually harassed by members of her unit who were putting their hands on her, as well as an officer who had a sexual interest in her. She filed written complaints after some of the incidents, but does not remember anything happening. Because there was so much physical activity required during her classes she began to experience pains in her legs. At times she felt there were broken bones in her feet and legs and she was unable to run or walk. During a counseling with her commander and first sergeant she was told that she was not motivated enough to be a good soldier, and that she had a poor attitude. During a counseling session she informed her commander that she wanted to be released from the Army, and that her lack of motivation was due to the extended period of sexual harassment that was constantly bothering her. In support of her request she submits copies of her service records, the Department of Veterans Affairs rating decisions, her compensation and pension exam reports, a legal brief, her DD Form 214, and a statement of support from a retired Medical Corps officer.

COUNSEL CONTENDS: That the applicant suffered from severe mental disease due to her experiences of sexual harassment while in training and feels she was denied formal medical board evaluations. That the applicant’s request to re-open her discharge for physical and mental evaluations is based on fundamental issues of injustice. The unwanted sexual harassment during the first months of 1991 resulted in her becoming mentally unstable, and when nothing she did made the harassment stop, she became traumatized. The applicant’s decade of turmoil and despair were a direct result of her not being properly evaluated upon her discharge, and therefore it is requested that the Board review all enclosed documents to determine the extent and degree of disabilities she possessed at the time of her separation from the Army and provide appropriate relief.

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

The applicant enlisted in the Regular Army on 9 October 1990, for a period of 6 years. She completed basic training at Fort Dix, New Jersey, and was assigned to the Academy of Health Science, at Fort Sam Houston, Texas for advanced individual training in MOS (military occupational specialty) 91Q (Pharmacy Specialist). However, on 31 May 1991, she was relieved from class because of her pending separation.




On 17 May 1991, the applicant was counseled because her overall behavior was not in keeping with military standards. She displayed a poor attitude and a lack of motivation. The applicant was encouraged to improve her attitude and motivation level in order to become a successful soldier. The applicant stated that she did not want to remain in the Army and was requesting a discharge.

On 22 May 1991, she was counseled regarding her earlier request for discharge, and was informed by her commander that in his judgment she would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier, and was initiating action to separate her from the service under the provisions of Army Regulation 635-200, chapter 13, prior to her normal ETS (expiration term of service).

On 28 May 1991, a Mental Status Evaluation cleared the applicant for separation, noting that there was no evidence of mental disease or defect of psychiatric significance or of sufficient severity to warrant disposition through medical channels, that the applicant’s behavior was normal, she was fully oriented, her thinking process was clear, and her thought content was normal. In the opinion of the physician she was mentally responsible and had the capacity to understand and participate in the proceedings. The applicant also indicated her desire to be separated.

On 30 May 1991, a medical examination cleared the applicant for separation.

On 14 June 1991, the applicant’s commander notified her that he was initiating action to separate her from the service, under the provisions of Army Regulation 635-200, chapter 13. He stated that the reason for his action was because she was unable and unwilling to adapt socially and emotionally to the military life-style.

After having been advised of her rights, the applicant authenticated a statement with her initials and signature in which she acknowledged notification of her commander’s intent, declined the opportunity to consult with counsel, and elected not to submit statements in her own behalf. She indicated that she understood the ramifications of receiving a less than fully honorable discharge.

On 14 June 1991, the appropriate separation authority approved the applicant’s discharge and issuance of an honorable discharge.

On 24 June 1991, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates she had 8 months and 16 days of active service.

A statement of support from a retired Medical Corps officer states that the applicant was referred to him in January 1991, for moral support and counseling. He states that the applicant was a very intelligent Indian girl from a Brahmin caste in India, and that her moral and ethical standards and character were outstanding, that he was made aware of multiple sexual harassment incidents which went unanswered, and that prior to her separation she was extremely depressed, fearful and in emotional turmoil.

Subsequent to her discharge the Department of Veterans Affairs (VA) granted the applicant a 70 percent service connected disability for paranoid schizophrenia from 16 June 1998, and a 10 percent service connected disability for residuals of a stress fracture of the left third metatarsal, effective 1 July 1999.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

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. Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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. A mental health evaluation, conducted on 28 May 1991, found the applicant fully alert and oriented, her memory good, and her thought process clear and normal. It determined the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right.



2. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights. There is no evidence that the applicant ever raised the issue of sexual harassment to her chain of command as the reason for her inability to meet the performance expectations.

3. The evidence of record indicates she did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.

4. A rating action by the VA does not necessarily demonstrate any error or injustice by the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the VA does not compel the Army to modify its reason or authority for separation.

5. 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.

6. 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

__AAO__ __TBR __ __MMB__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002081272
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030807
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.	108.00
2.
3.
4.
5.
6.