RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 27 January 2004
         DOCKET NUMBER: AR2003091742


         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Lester Echols		Member
Ms. Yolanda Maldonado		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, reconsideration of her request to change her separation for pregnancy to a physical disability retirement.

2. The applicant states that her dream was the Army and it was stolen from her. Her rape caused and still causes her physical and mental disabilities.

3. The applicant provides a Department of Veterans Affairs (VA) Rating Decision dated 10 March 2003.

CONSIDERATION OF EVIDENCE:

1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2002078384 on 11 March 2003.

2. The 10 March 2003 VA Rating Decision is new evidence which will be considered.

3. The applicant enlisted in the Regular Army on 30 December 1998. Her medical records showed she was seen on six occasions in 1999 for problems with her feet and ankle. Additionally, she was treated on 2 April 1999 complaining of a headache, tiredness, being bloated, and lack of energy. On 30 September 1999, she complained of headaches, fatigue, mood swings, and being distressed. On 23 November 1999, she was scheduled for surgery because of a bunion on her right foot.

4. In January 2000, the applicant, who was assigned to Fort Drum, New York, was awarded joint custody of her children, who were living in Missouri.

5. On 8 February 2000, the applicant was seen for complaints of vomiting, diarrhea, and headaches. A 3 March 2000 medical record indicated she stated she could perform all her duties and complete the Army Physical Fitness Test and forced marches. Her profile for her flat feet was changed from P3 to P2 and she was removed from Medical Evaluation Board processing.

6. In a 7 May 2000 request for compassionate reassignment, the applicant mentioned she had been the victim of physical and mental abuse from her first sergeant. Her medical records showed that, between 19 May and 18 September 2000, she was treated or seen for various complaints including migraine headaches, trouble sleeping, depression, weight gain, and right leg numbness.

7. An August 2000 medical report showed she was 3 months pregnant. A 3 November 2000 Report of Medical History showed she had indicated she had been raped by the first sergeant, that she had surgery on her foot in April 2000, and that she had spent time in a mental ward at a hospital in September 2000 and was treated for depression.

8. A 6 November 2000 Report of Medical Examination indicated the applicant was medically qualified for separation with a physical profile serial of 111111.

9. In a 15 January 2001 statement, the applicant stated that she had decided to leave the Army because of her pregnancy. She stated her command did not care about her or her family. She was the victim of a cruel situation, having been raped by her first sergeant and lived for months with his harassment. She stated she had been severely depressed and was on medication. She was raped in July 1999, reporting it in February 2000. Since then her command started torturing her.

10. On 15 January 2001, the applicant was released from active duty under the provisions of Army Regulation 635-200, chapter 8 for pregnancy. Her discharge packet is not available. Prior to her release from active duty, she enlisted in the Army National Guard and was transferred to an Army National Guard unit at Fort Drum, New York upon her release from active duty.

11. The archives of the Watertown Daily Times revealed an article published on 3 April 2001 which stated the applicant's first sergeant had admitted guilt to coercing sex from young women under his command rather than face a court-martial.

12. In an 11 June 2001 letter, a VA doctor informed the applicant's company commander that the applicant was diagnosed with a major depressive disorder and post-traumatic stress disorder (PTSD) and stated that it was not in the interest of her mental health to return to her Army National Guard unit at that time.

13. On 19 October 2001, the VA informed the applicant she had been granted a 30 percent service-connected disability rating for her PTSD and a zero percent rating for bilateral flat feet with status post bunionectomy right foot.

14. The 10 March 2003 VA Rating Decision provided by the applicant shows that her 30 percent disability rating for PTSD was increased to 70 percent effective 22 July 2002.

15. 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 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. In pertinent part, it states that 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. It also states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.

16. Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted. Four numerical designations (1 - 4) are used to reflect different levels of functional capacity in six factors (PULHES): P - physical capacity or stamina, U - upper extremities, L - lower extremities, H - hearing and ears, E - eyes, and S - psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.

17. Title 38, U. S. Code, sections 1110 and 1131, 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.

DISCUSSION AND CONCLUSIONS:

1. The applicant's contention that she had been raped by her first sergeant in July 1999 (although she first reported it in February 2000) is noted. The effects of this trauma on the applicant are not being discounted.

2. However, the evidence of record shows the applicant stated in March 2000 that she could perform all her duties. In November 2000 she was given a physical profile serial of 111111. In January 2001, she felt well enough to enlist in the Army National Guard.

3. 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’s medical condition may not render the individual unfit for military duty and yet be rated by the VA as disabling.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__aao___ __le____ _ tm____ DENY APPLICATION

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR 2002078384 dated 11 March 2003.




                  __Arthur A. Omartian__
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091742
SUFFIX
RECON
DATE BOARDED	20040127
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	108.00
2.
3.
4.
5.
6.