RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 JANUARY 2006
      DOCKET NUMBER:  AR20050004175


      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             |
|     |Ms. Rene’ R. Parker               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Shirley Powell                |     |Chairperson          |
|     |Mr. Chester Damian                |     |Member               |
|     |Ms. Karmin Jenkins                |     |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, through his congressman, that he be recalled to
active duty, placed on the temporary disability retired list (TDRL), and
undergo a medical evaluation board (MEB) or a physical evaluation board
(PEB).

2.  The applicant states that he was never given the opportunity to appear
before a MEB and his Post-Traumatic Stress Disorder (PTSD) condition was
ignored.  He states that in a memorandum dated 10 June 2003, he was
directed to redeploy to his mobilization station to undergo continued
medical treatment, convalesce, and medical evaluation board proceedings,
which did not occur.  The applicant maintains that he was released from
active duty and given 60 days of medical benefits instead of being sent
before a MEB.  He argues that being released from active duty without being
sent before an evaluation board was an error in justice that promoted other
errors.

3.  The applicant provided a three page letter outlining the events that he
feels caused the development of his PTSD.  He stated that during his active
participation in Desert Storm, 17 November 1990 through 17 June 1991, he
was exposed to continuous scud alerts and ran missions that were physically
and mentally excruciating.  The applicant recalled being assigned to a body
detail duty where he was responsible for placing bags with dead corpses and
body parts into excavated holes.  He also recalled the sight of a scorched
body inside an enemy vehicle from a missile attack.  He continued by
describing horrific incidents, to include the injury of three of his close
friends, which occurred during battle and their effect on his mental state
of mind.

4.  The applicant stated that in February 2003, he was deployed to the
Middle East in support of Enduring Freedom.  He maintains that he began to
relive his combat experiences from Desert Storm and fell into a deep
depression.  The applicant said that after witnessing a severe accident
during a convoy to Kuwait, he had a mental breakdown and was airlifted from
the hostile zone.  While undergoing psychological treatment in Kuwait, he
was notified of the death of his mother-in-law.  He requested emergency
leave but, his request was denied.  The applicant admitted that he lost
control of his emotions and asked that his weapon be taken away from him.
After the incident, the applicant stated that he began to take prescribed
medication, attended counseling, and two of his comrades were assigned to
watch him until he was sent home.



5.  The applicant provides his self-authored memorandum, a copy of his DD
Form 214 (Armed Forces of the United States Report of Transfer or
Discharge), 20 Year Letter, various orders, disability retirement approval,
letter from Social Security Administration, memorandum on Unexcused
Absence, memorandum from the Army Board for Correction of Military Records
(ABCMR), and medical and mental evaluations.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show that he entered the United States Navy on
       5 November 1973 and was released from active duty and transferred to
the Naval Reserve on 19 August 1977.  He enlisted in the United States Army
National Guard on 17 November 1990.  He deployed to Saudia Arabia during
the period 19 January 1991 through 15 May 1991 and participated in
Operation Desert Storm and Desert Shield.

2.  On 19 December 1995, the applicant underwent a medical examination in
which he was found to be qualified for enlistment in the Army Reserve.  His
occupation at the time of the examination was listed as psychiatric nurse
assistant.  The applicant listed “No” to the questions of whether he ever
had or now has “frequent trouble sleeping,” “depression or excessive
worry,” or “nervous trouble of any sort.”  It is the last physical listed
in the applicant’s records.

3.  On 8 May 2002, the applicant received his twenty year letter.  This
letter notified him of his eligibility for retired pay at age 60.

4.  On 20 April 2003, the applicant was deployed to Kuwait in support of
Enduring Freedom.  On 21 May 2003, the applicant received a mental status
evaluation.  The report verified that the applicant was seen on 8 May 2003
as a self-referral for depression.  His depressed mood was based on the
recent death of his mother-in-law and occupational related stress.  The
social worker stated that it is imperative that the issue of the Soldier
returning home be considered by his command in order to afford this Soldier
the opportunity to appropriately grieve and continue with grief counseling
and medication management.

5.  The applicant provides four memorandums dated the later part of May
2003 in reference to his suitability for combat action.  These memorandums
from his immediate chain of command, platoon sergeant, platoon leader,
commander and battalion commander attest to his inability to function in a
combat environment.  The platoon sergeant stated that if the applicant was
allowed to deploy to Iraq with the unit, he would be a hazard to himself
and the other Soldiers due to his lack of focus.  The platoon leader said
that the applicant has been very detached from the platoon and has stated
numerous times he does not want to be part of the deployment due to
financial reasons, family situations and his dislike of the chain of
command.  The commander stated that the applicant’s recurring depression
makes him incapable of functioning in the military and recommended that he
be returned to the mobilization station to be processed through the medical
facilities.  The battalion commander agreed with the company commander that
the applicant was not fit for duty and recommended that he be returned to
the mobilization station to initiate MEB proceedings.

6.  The applicant’s psychiatric treatment summary is based upon information
contained in his mental health records dated 9 May 2003, 13 May 2003, and
21 May 2003.  Additionally, information was obtained from follow-up visits,
new patient questionnaire, and memorandums from the applicant’s chain of
command.  These documents were dated 26 May 2003 through 8 September 2003.
The psychiatrist explained that the applicant was initially seen in August
2003 and started on medications.  He was referred for a MEB and placed on
convalescent leave.  The applicant was also placed on profile as not being
qualified for worldwide deployment.  The psychiatrist diagnosed the
applicant with PTSD.  The doctor stated that the applicant was judged to be
severely impaired and unable to return to military duty.

7.  In a PTSD Assessment Summary dated 13 July 2003, the doctor reiterates
the same information contained in the applicant’s letter outlining the
events that he feels caused the development of his PTSD.  Additionally, the
doctor stated that after the applicant was returned to continental United
States (CONUS) from his deployment to Kuwait, he (applicant) was advised
not to return to his VA job “where he had worked for 13 years as a
psychiatric technician.”  The doctor concluded that based upon the
interview with the applicant and psychometric test data, the applicant met
the diagnostic criteria for war-zone-related PTSD.

8.  On 14 July 2003, the applicant was released from active duty, not by
reason of physical disability, and transferred to the 478th Transportation
Company, Camp Pendleton, California.

9.  On 16 July 2003, through his civilian job, the applicant requested to
become a leave recipient under the Voluntary Leave Transfer Program.  In
his memorandum he stated that he was a mental health employee under medical
evaluation with the Davis-Monthan Air Force Base.



10.  On 8 August 2003, the applicant’s psychiatrist provided his opinion on
the applicant’s separation from active duty status from the Army.  The
psychiatrist stated that he diagnosed the applicant with PTSD and major
depression.  He said that both disorders are directly related to the
applicant’s service as an active duty member in the Gulf War.  The
psychiatrist opined that the applicant should have been assessed for
medical retirement via MEB prior to separation from the Army.

11.  Letter of Instructions, dated 8 December 2003, subject:  Unexcused
Absence, notified the applicant that he had four unexcused absences.  The
letter stated that if he accumulated nine unexcused absences within a 1-
year period, he would be processed for separation as an unsatisfactory
participant.

12.  Documents from Social Security Retirement, Survivors and Disability
Insurance and Office of Personnel Management Federal Employees Retirement
System dated 6 and 8 December 2003, respectively, show that the applicant’s
disability retirement from his civilian job was approved.  His first month
of entitlement to benefits was December 2003.

13.  On 12 March 2004, the applicant was discharged from the USAR for
unsatisfactory participation.  His discharge was listed as “Under Honorable
Conditions (General).”

14.  The rating decision from VA dated 20 December 2004, granted the
applicant 100 percent rating for service connected PTSD effective 15 July
2003.  Additionally, he was awarded 10 percent rating for service connected
tinnitus, effective 25 February 2002.

15.  The applicant’s record shows that his rater assessed his overall
potential for promotion and/or service in positions of greater
responsibility as “fully capable” on all his evaluations on file from
December 1995 through November 2001.  The rater included comments such as
“possesses requisite competence and aptitude to accomplish the most
demanding task,” “demonstrates ability to cope with stress-filled
situations,” and “leads by example.”  The senior rater assessed the
applicant as 1, 2, or 3 “successful” in overall performance and 1, 2, or 3
“superior” overall potential for promotion and/or service in positions of
greater responsibility.  He listed comments on the applicant’s evaluation
reports of “retain in USAR,” “promote ahead of peers” and “put in Squad
Leader position.”



16.  Army Regulation 635-40, (Physical Evaluation for Retention,
Retirement, or Separation) 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 interrupted and they can
no longer continue to reasonably perform because of a physical disability
incurred or aggravated in service.  When a Soldier is being processed for
separation for reasons other than physical disability, continued
performance of assigned duty commensurate with his or her rank or grade
until Soldier is scheduled for separation, is an indication that the
individual is fit.

17.  This same regulation requires commanders to ensure that any physical
defects impacting on a Soldier's performance of duty are reflected in the
Soldier's evaluation report.  The commander will refer a Soldier to the
servicing medical treatment facility for medical evaluation when the
Soldier is believed to be unable to perform the duties of his or her
office, grade, rank, or rating.  The medical treatment facility 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 medical treatment facility commander will refer the
soldier to a MEB.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s records show that he participated in Desert
Shield/Storm from January through May 1991.  In December 1995, the
applicant underwent a medical examination in which he was found “medically
fit” for duty.  The applicant’s records do not reveal any history of a
psychiatric disorder as a result of his participation in the Gulf War.  The
records indicate that the first signs of any type of mental problems were
identified in May 2003, when the applicant self-referred himself for
depression.  His self-referral was shortly after his deployment to Kuwait
and subsequent death of his mother-in-law.

2.  The letters provided by the applicant’s chain of command for his early
departure from Kuwait substantiates his claim concerning his mental state
of mind.  The chain of command recommended MEB proceedings be initiated.
The applicant also provides a memorandum by his psychiatrist who opines
that the applicant should have been assessed for medical retirement via a
MEB.  The applicant’s medical record verifies that he was seen by medical
treatment personnel on several occasions between May 2003 and the date of
his release from active duty on 14 July 2003.

3.  The applicant’s records do not contain any results of an evaluation
performed by his medical treatment facility or a referral to the MEB.  The
absence of any type of a referral or documentation from the medical
treatment facility suggests that the applicant was medically qualified to
perform his duty.  Additionally, the orders separating the applicant from
active duty stated that the applicant was released from active duty, not by
reason of physical disability.

4.  There is no evidence, and the applicant has not provided any, that his
medical condition was such that it precluded him from the performance of
his military duties.  The applicant provides his 100 percent disability
rating from VA for PTSD as proof that he should be placed on the TDRL and
undergoes a MEB or a PEB. The Board acknowledges that VA is not required by
law to determine medical unfitness for further military service.  The VA
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, the applicant'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 him for VA benefits based on an evaluation by
that agency.

5.  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 his
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.

6.  No medical evidence has been presented by the applicant to demonstrate
an injustice in the medical treatment received in service.  The applicant
was discharged for unsatisfactory performance.  Absent evidence to the
contrary, the applicant was physically fit at the time of his release from
active duty in July 2003 and his subsequent discharge in March 2004.
Although he suffered with depression, he has provided no evidence to
indicate that he was unfit for duty.  Consequently, there is no basis for
granting the applicant's request to recall him to active duty, place him on
the TDRL while he undergoes a medical evaluation board.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_SP_____  __CD  __  ___KJ___  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.




                                  _____Shirley Powell_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004175                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060118                                |
|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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