RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 October 2005
	DOCKET NUMBER:  AR20050001675 


	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:


Ms. Barbara J. Ellis

Chairperson

Mr. Hubert O. Fry

Member

Mr. Robert Rogers

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.  The applicant requests, in effect, that his reason for separation be changed to medical retirement.

2.  The applicant states he was medically evacuated from a combat zone, hospitalized for a week, and then discharged.  His unit ignored regulatory guidance by not sending him to a Physical Evaluation Board (PEB).

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty); a Department of Veterans Affairs (DVA) Rating Decision dated 21 December 2004; a Psychiatry Consult/Intake Summary dated 13 May 2004; an Aeromedical Evacuation Patient Record; an extract from Title 10, U. S. Code, section 1201; and an extract from Table 4-2, Army Regulation 635-40.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 January 2003.  He completed basic training and advanced individual training and was awarded military occupational specialty 96R (Ground Surveillance Systems Operator).  He deployed to Iraq on 28 July 2003.

2.  The 13 May 2004 Psychiatry Consult/Intake Summary indicated the applicant reported he was in his usual state of good health until November 2003, when he returned to Iraq from leave and found changes in his chain of command personnel, which increased his situational stressors.  He perceived he was targeted for hazing and harassment.  He perceived he was set up to fail when he was given counseling statements for falling asleep on guard tower duties, when he would work double shifts, days and nights.  He perceived harassment and loss of support from his unit when he was not allowed to go home when his grandmother died when others in his unit were allowed to go home for the same reason.  

3.  The Psychiatry Consult/Intake Summary went on to indicate that, after the applicant's arrival at the 758th Combat Support Hospital, the electricity went out and he was overwhelmed with his emotional distress and wandered away from the hospital because of a need to be alone and get away.  During that excursion he traded his boots for alcohol and then wandered back the same day.  During the interview, the applicant endorsed feelings of desperation concerning his situational stressors within his unit.  He reported motivation to stay in the Army 
but did not know if he could fit in with his current unit.  He reported a desire to improve his situation and requested help.

4.  The Psychiatry Consult/Intake Summary noted the applicant's thought processes were logical, linear, and goal-directed.  There was no indication of hallucinations, delusions, obsessions, or ritual behaviors.  His cognition was intact and insight was fair, as he was aware that his behavior had consequences. He was given a provisional diagnosis of major depressive disorder.  He was medically evacuated to Germany on 14 May 2004.

5.  The applicant's discharge packet is not available.

6.  The applicant's service medical records were provided by the DVA.  The only documents available for the pertinent period (May 2004 through the date of the applicant's separation) are lab results (no abnormalities indicated); a DD Form 2808 (Report of Medical Examination) with a summary of defects and diagnoses listed as history of combat stress, history of episodic low back pain, patellar tendonitis bilateral, and nearsightedness; a DD Form 2807-1 (Report of Medical History); and a DA Form 4700 (Medical Record Supplemental Medical Data).

7.  The DA Form 4700 listed a Report Title of "Mental Health Intake Interview."  This document noted in part that the applicant had a behavior disturbance exacerbated by a hostile command approach.  It also noted in part that the applicant "may need chapter sep."

8.  On 11 August 2004, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-17 for physical condition, not a disability.

9.  On 21 December 2004, the DVA awarded the applicant a 50 percent disability rating for posttraumatic stress disorder with major depressive disorder, a           10 percent rating for bilateral patellar tendonitis, and a zero percent rating for low back strain.  He was denied service connection for chronic daily headache accompanied with dizziness.

10.  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 the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.


11.  Army Regulation 635-40, paragraph 4-7 states commanders of medical treatment facilities (MTFs) who are treating Soldiers in an assigned, attached, or outpatient status may initiate action to evaluate the Soldier's physical ability to perform the duties of his or her office, grade, rank, or rating.  Paragraph 4-8 states, when a commander believes a Soldier of his or her command is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability, the commander will refer the Soldier to the responsible MTF for evaluation.  

12.  Army Regulation 635-40, paragraph 4-9 states the MTF commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation.  The commander will advise the Soldier's commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a Medical Evaluation Board (MEB).  Paragraph 4-10 states a MEB makes its decision to separate a Soldier for physical unfitness on the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.  

13.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-36 states transient, situational maladjustments due to acute or special stress do not render an individual unfit because of physical disability but may be the basis for administrative separation if recurrent and causing interference with military duty.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 states designated commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability and excluding conditions appropriate for separation processing under paragraph 5-11 (not meeting procurement medical fitness standards) or paragraph 5-13 (personality disorder) that potentially interfere with assignment to or performance of duty.  

15.  Title 38, U. S. Code, sections 1110 and 1131, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended his unit ignored regulatory guidance by not sending him to a PEB.  It is not a commander's decision to refer a Soldier to a MEB or a PEB.  The MTF commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation and, if it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a MEB.

2.  The evidence of record shows the applicant's commander properly referred him to the responsible MTF for evaluation.  The available medical documentation indicates the applicant was suffering from combat stress exacerbated by situational stressors within his unit.  The available medical documentation shows the MTF commander having primary medical care responsibility for the applicant examined him.  The same medical documentation shows the MTF commander did not find that the applicant met the criteria for referral to a MEB but rather found he might need chapter separation.

3.  There is no evidence of record to show the applicant was ever unfit for military duty due to his bilateral patellar tendonitis or for low back strain conditions.

4.  The applicant was subsequently administratively discharged for having a medical condition, not a disability.  It is reasonable to presume paragraph 3-36 of Army Regulation 40-501 was the basis for the applicant's administrative discharge.  Based on the available medical documentation, and in the absence of evidence to the contrary, it appears the applicant was properly discharged with an administrative separation rather than a medical separation.

5.  The rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  The DVA 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 be rated by the DVA even though he or she was not found to be physically unfit by the Army.  

6.  In addition, diagnoses by Army medical personnel and DVA medical personnel need not be in complete agreement, especially in the realm of psychiatric disorders.  It is presumed competent medical authorities in both agencies make their diagnoses based upon their evaluation of the individual at a particular point in time.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__bje___  __hof___  __rr____  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.




__Barbara J. Ellis__
          CHAIRPERSON


INDEX

CASE ID
AR20050001675
SUFFIX

RECON

DATE BOARDED
20051019
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.