MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:



                  BOARD DATE: 04 NOVEMBER 2003
                  DOCKET NUMBER: AR2003087540

         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. Fred N. Eichorn		Chairperson
Ms. Gail J. Wire		Member
Mr. Antonio Uribe		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 her discharge under honorable conditions (general) be upgraded to honorable or that she receive physical disability retirement or discharge.

APPLICANT STATES: She has been granted service connection for a major depressive disorder that occurred while on active duty. Her unit was aware that she suffered severely from memory loss due to the disorder; however, instead of receiving a medical discharge, her character of service was "general," and the reason for her discharge, "misconduct."

She submits a copy of a Department of Veterans Affairs (VA) 27 January 2003 rating decision awarding her service connection for major depressive disorder with a 10 percent evaluation rating.

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

The applicant enlisted in the Army for four years on 28 November 1995, enlisting for the School of Music course for a baritone or euphonium player. She was assigned to the School of Music at Norfolk, Virginia for training. She completed her training and in September 1996 was assigned to the 392nd Army Band at Fort Lee, Virginia.

Beginning in late 1997 and continuing through May 1998 the applicant was counseled on numerous occasions – for being late for formation, failing the Army Physical Fitness Test, poor duty performance, missing assigned duties, failure to go to place of duty, violating restriction, failure to follow orders, missing appointments, absent from formation, insubordination, failure to pass diagnostic Army Physical Fitness Tests, and being delinquent in her duties. Counseling statements show that the applicant was slothful in the performance of her duties, and contemptuous in her demeanor and behavior.

On 4 February 1998 the applicant completed a report of medical history in conjunction with her physical examination for an Army program for which she was volunteering. In that report she stated that her health was excellent, stated that she did not have nor did she ever have any disease or injury, to include loss of memory or amnesia, depression, excessive worry or nervousness; anxiety; a mental condition or illness; frequent trouble sleeping; considered or attempted suicide; or easy fatigability.

A 7 April 1998 statement shows that while being counseled for failing the Army Physical Fitness Test, poor duty performance, and failure to go to her place of duty; the applicant began hyperventilating and sobbing uncontrollably, and had to be taken to the mental health clinic at Kenner Army Medical Center. She was placed on quarters for 24 hours.

The applicant received nonjudicial punishment under Article 15, UCMJ (Uniform Code of Military Justice) on 25 February 1998 for insubordination to a noncommissioned officer. She received nonjudicial punishment on 21 April 1998 for failure to go to her place of duty.

On 23 April 1998 the applicant's commanding officer recommended that she be barred from reenlistment. The bar was approved on 12 May 1998. The applicant elected not to appeal the bar.

A 24 April 1998 report of mental status evaluation shows that the applicant was mentally responsible, able to distinguish right from wrong, had the mental capacity to understand and participate in proceedings, and that she met the medical standards for retention in the Army. The examining physician diagnosed her condition as major depressive disorder, recurrent, moderate, stating that she continued to experience difficulties combining her personal goals with the demands of the military, and that her current struggle with depression complicated the picture. Her response to her situation was to further isolate herself from her unit and her peers. He stated that future suicide gestures were possible, and that a genuine suicide attempt, although far less likely, could not be ruled out. He stated that the applicant was psychiatrically cleared for any administrative action deemed appropriate.

On 5 June 1998 the applicant's commanding officer notified the applicant that he was initiating action to separate her for misconduct under the provisions of Army Regulation 635-200, chapter 14, and that he was also recommending that she receive a general discharge.

The applicant consulted with counsel, and stated that she had been advised of the basis for the contemplated action, its effects, the rights available to her, and the effect of any action taken by her in waiving her rights. She stated that she understood the nature and consequences of the general discharge under honorable conditions that she might receive.

She submitted a statement to the effect that she was requesting an honorable discharge so that she could receive educational benefits. She desired to pursue her education full time; however her finances would not permit her to do so. With the stress and expense of transitioning out of the military, she would have even more stress, creating a hardship for her. She was led to believe that she would be entitled to educational benefits. She anticipated an Army career, was motivated, receiving meritorious awards during basic and advanced training. Arriving at her first duty station, and ever since, she was struggling with chronic depression, suffering from memory loss, energy loss, hair loss, insomnia, loss of appetite, loss of interest in things that she enjoyed the most, loss of concentration, feelings of hopelessness, isolation, and many other symptoms. She has not conquered these symptoms, and has been prescribed Prozac, an anti-depressant. Because her work environment created her depression, everyday life became worse for her and she started getting into trouble. She indicated that she was not saying that she did not deserve the punishment, because she did do all of those things, and for the sake of the Army she thought it was best that she be discharged. The only thing she was asking was for an honorable discharge.

On 23 June 1998 the applicant's commanding officer recommended to the separation authority that the applicant be discharged for misconduct. In his recommendation, he indicated that the report of mental evaluation, and report of physical evaluation were enclosed.

On 7 July 1998, the separation authority approved the recommendation, directing that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for an established pattern of misconduct, and that she be issued a General Discharge Certificate.

The applicant was discharged on 17 July 1998.

On 24 March 1999, in a unanimous opinion, the Army Discharge Review Board denied the applicant's request to upgrade her discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for misconduct; however, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of her office, grade, rank, or rating. It provides for medical evaluation boards (MEBs), 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 Army Regulation 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 Board).

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.

Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

Title 38, United States Code, sections 1110 and 1131, permits the Department of Veterans Affairs (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, it is concluded:

1. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. In view of the applicant's numerous acts of indiscipline, it does not appear that her general discharge was too severe. The Board notes that the applicant could have received a discharge under other than honorable conditions.

2. The 24 April 1998 report of mental status evaluation shows that she was psychiatrically cleared for discharge, notwithstanding the diagnosis of depression. Absent evidence to the contrary the applicant was physically fit for discharge.

3. 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. 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 her 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.

5. The medical evidence of record indicates that the applicant was medically fit for retention at the time of her separation. She has submitted no probative medical evidence to the contrary. She did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.

6. 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.

7. 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

__FNE __ __GJW _ __AU ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087540
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031104
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.	110.00
2.
3.
4.
5.
6.