RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 SEPTEMBER 2005
      DOCKET NUMBER:  AR20050000969


      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             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Paul Smith                    |     |Member               |
|     |Mr. Leonard Hassell               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  In effect, the applicant requests physical disability retirement or
discharge.

2.  The applicant states that the Department of Veterans Affairs (VA)
recently awarded him a 60 percent service-connected disability rating.
Given the nature of his disabilities, his discharge should be for medical
reasons.

3.  The applicant provides a copy of a 10 November 2004 letter to him from
a Member of Congress, a copy of a VA rating decision, a copy of his letter
to an individual regarding his medical treatment, a copy of his mother’s
letter to the psychiatrist who evaluated him while he was on active duty, a
copy of an order awarding him the Army Good Conduct Medal, a copy of his
commanding officer’s recommendation that he be separated because of
personality disorder, a copy of a counseling statement, and a copy of a
psychiatric evaluation.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army for 6 years on 25 April 2001 for
training as an armor crewman, with his initial assignment thereafter to
Korea.  He enlisted under the Army Incentive Enlistment Program with
entitlement to a cash bonus of $17,000.00.  The applicant trained at Fort
Knox, Kentucky, and in January 2002 was assigned to an armor unit in Korea.
 He returned to the United States and was assigned to Fort Lewis,
Washington in January 2003.  He was promoted to pay grade E-4 in June 2003.

2.  On 29 March 2004 orders were published awarding the applicant the Army
Good Conduct medal for the period 25 April 2001 to 24 April 2004.

3.  On 21 April 2004 the applicant was evaluated at the Behavioral Health
Clinic. The report of that evaluation indicates that his chief complaint
was “Anger” and that he had a problem with “Hyperparathyroidism, calculus
of kidney and uretrer.”  The evaluator stated that the applicant was
currently in the rear detachment of an infantry battalion being evaluated
for deployment to Iraq, and that he was placed in the rear detachment last
year when his unit deployed.  He was pending surgery and medical tests
during the last 12 months, and it appeared that he might have slipped
through the system.  The evaluator stated that he had seen him several
times due to his frustration and anger regarding the military and medical
care, and that his frustration had escalated to the point where he made non
specific threats, such that he was given a profile for no weapons for 72
hours.  The evaluator went on to state that he evaluated the applicant on 1
April 2004 and found him to be fit for duty and deployable; however, since
that time he had  become more frustrated, angry and was making threats
without plan. The evaluator stated that the applicant was alert, quiet, and
that his speech and language was normal.  He was angry and frustrated.  His
thoughts were mostly about his wife and his desire to exit the military.
The evaluator stated that the applicant expressed his concern that he might
not be able to control his anger, but that he had no plans or intent.  The
evaluator stated that the applicant made threats while talking to his care
manager.

4.  On that same date, the applicant was evaluated by a psychiatrist, a
   Doctor “K,” who stated that the applicant did not have a disabling
mental disorder and was responsible for his actions.  He stated that his
anger and threats were designed to call the attention of others to his
concerns and to grant his demands. He stated that the applicant was not
deployable from a mental health point of view due to a personality disorder
that would only cause increased problems in a stressful overseas setting.
The psychiatrist recommended that the applicant be administratively
separated under the provisions of Army Regulation 635-200, paragraph 5-13,
and if he continued to make homicidal statements or threats, he should
receive the appropriate incarceration and disciplinary action.

5.  On 7 May 2004 the applicant’s commanding officer counseled him,
informing him that he would be released from the Army because of a
personality disorder.  He informed the applicant that he was recommending
his separation from the Army.  The applicant, on 10 May 2004, signed the
counseling form, agreeing with his commanding officer’s plan of action.

6.  The applicant’s commanding officer initiated action to separate him for
a personality disorder.  He advised him that he was recommending that he
receive an honorable characterization of service.

7.  On 16 June 2004 the applicant consulted with counsel and stated that he
had been advised of the basis for the contemplated action to separate him
for a personality disorder, its effect, the rights available to him, and
the effect of any action taken by him in waiving his rights.  He declined
to submit a statement in his own behalf.

8.  On 17 June 2004 the applicant’s commanding officer recommended to the
separation authority that the applicant be separated because of a
personality disorder.  On 7 July 2004 the separation authority approved the
recommendation.  The applicant was discharged at Fort Lewis on 21 July 2004
with an honorable characterization of service.

9.  In an undated letter to an individual, with a notation that a copy of
the letter was sent to a representative of a Member of Congress, the
applicant complained of his medical treatment while in the Army,
specifically the treatment by mental health officials at Madigan Army
medical Center.  He stated that he was treated in Korea for kidney stones,
and the treatment continued after his return to the United States.  He was
diagnosed with colitis and hyperparathyroidism, and that it was causing the
stones, depression, and could lead to further damaging conditions.  He
stated that after surgery he was depressed and still in pain.  After
leaving to see his life long friend buried, and resubmitting his request
for leave, he was denied leave.  As part of deployment readiness he was
required to go      through the mental health system.  He told the doctor
about his medical condition, but did not receive any treatment.  The other
visits with the doctor did not go well.  He was passed off to Doctor “K,”
who put words into his mouth telling him he was angry and was saying things
because he did not get his way.  He stated that he was threatened with
prison time.  Shortly after, he was diagnosed with gall bladder disease and
underwent another surgery.  He almost died from internal bleeding from the
previous surgery.  Shortly after his convalescent leave he was discharged.
He was now branded with a personality disorder, although he was to be
medically discharged in 2003; however, the paperwork was not finished
because his doctor was sent to Iraq.

10.  In an undated letter to Doctor “K” the applicant’s mother complained
of her son’s treatment, commented on his medical conditions while in the
Army, stating that hyperparathyroidism causes a personality change, and
stated that the applicant was told that he had cancer.  She stated that the
applicant was excited about going to Iraq, and that he had dreamed of
killing people.  He stated that her son had said many times after the war
started that he never wanted to kill anyone.  She said that her son needed
help, and should have been counseled.  She accused the doctor of making a
prejudicial statement about the applicant’s wife because she was Oriental.
She stated that she could not understand why the doctor was treating people
of different races in view of his statement.  She stated that the applicant
was angry, but the doctor was not interested in treating him but only
wanted to put him out of the Army.  She stated that the applicant has to be
checked once a month for the rest of his life.  She stated that the
applicant had six months of insurance and a sign-up bonus to pay back.

11.  In a 6 December 2004 rating decision, the VA awarded the applicant a
     30 percent service connected disability rating for colitis and
cholecystectomy residuals, indicating that since there was a likelihood of
improvement, and that the assigned evaluation was not considered permanent
and was subject to a future review examination; a zero percent rating for
parathyroidectomy residuals, indicating at the time of the VA examination,
the applicant reported no residuals from his parathyroidectomy; a zero
percent rating for tinea pedis, indicating that the evidence did not
support a compensable evaluation; a 30 percent rating for nephrolithiasis,
indicating that since there was a likelihood of improvement, the assigned
evaluation was not considered permanent and was subject to a future review
examination; and a 10 percent rating for epididymitis; for an overall
combined rating of 60 percent.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Paragraph 5-13 establishes policy and
prescribes procedures for separating members for personality disorder (not
amounting to a disability under Army Regulation 635-40), a deeply-ingrained
maladaptive pattern of behavior which interferes with the individual's
ability to perform.  Prior counseling with a view to correcting
deficiencies is mandatory.
The service of a Soldier separated for a personality disorder will be
characterized as honorable.

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

14.  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 his office, grade, rank, or
rating.  It states that the mere presence of an impairment does not, of
itself, justify a finding of unfitness because of physical disability.  In
each case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the Soldier
reasonably may be expected to perform because of his office, grade, rank,
or rating.  It states that the medical treatment facility commander will
refer a Soldier to a medical evaluation board if it appears that the
Soldier is not medically qualified to perform duty.  It 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 Medical Evaluation Board determines the Soldier does not meet
retention standards, the board will recommend referral of the Soldier to a
Physical Evaluation Board (PEB).

15.  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.

16.  Title 38, United States 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.  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.  The Army rates only conditions determined to be physically
unfitting at the time of discharge, thus compensating the individual for
loss of a career; while the VA may rate any service connected impairment,
including those that are detected after discharge, in order to compensate
the individual for loss of civilian employability.  A common misconception
is that veterans can receive both a military retirement for physical
unfitness and a VA disability pension.  By law, a veteran can normally be
compensated only once for a disability.  If a veteran is receiving a VA
disability pension and the ABCMR corrects the records to show that a
veteran was retired for physical unfitness, the veteran would have to
choose between the VA pension and military retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been discharged because
of his medical condition (and compensated accordingly) is noted.  Of
particular note, also, is the service-connected disability ratings awarded
by the VA for his medical conditions.

2.  Nonetheless, there is no evidence, and the applicant has not submitted
any, to show that his medical conditions caused him to be medically unfit
for retention in the Army.  He was not referred for processing under the
Army physical disability evaluation system.  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.

3.  The applicant was discharged for a personality disorder in accordance
with  regulatory provisions.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LE    __  __PS ___  __LH____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 for correction of the
records of the individual concerned.





                                  ______Lester Echols_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000969                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050929                                |
|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.                      |                                        |


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