RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:        9 January 2007
      DOCKET NUMBER:  AR20060006062


      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. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. Scott W. Faught               |     |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 that the narrative reason for separation be
changed from personality disorder to physical disability due to a back
injury.

2.  The applicant states, in effect, that she became depressed because of
her injured back and the abuse she suffered at the hands of her chain of
command who deprived her of needed physical therapy and violated her
profile by requiring her to perform guard duty.

3.  The applicant provides copies of her DD Form 214 (Certificate of
Release or Discharge from Active Duty), a February 2005 disability rating
from the Department of Veterans Affairs (VA), a 9 July 2003 DA Form 4856
(Developmental Counseling Form),  a 15 July 2003 DA Form 4856, and 30 pages
of service medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted and entered active duty in the Regular Army on
12 February 2002.

2.  In August 2002 the applicant was assigned to an air defense artillery
unit in Germany.  Counseling records include the following:

      a.  9 July 2003 DA Form 4856 shows she was absent from assigned guard
duty on 5 July 2003 for which she was counseled.  Her platoon sergeant
noted that, after the fact, he learned that the applicant had a physical
profile that precluded her performance of guard duty.  He recommended that
the commanding officer impose nonjudicial punishment under Article 15,
Uniform Code of Military Justice.

       d.  She was counseled on 15 July 2003 concerning a mental status
evaluation by a psychiatrist who had diagnosed her as having a borderline
personality disorder.  He recommended that she be separated because of her
personality disorder.  She was informed that the command had initiated
elimination proceedings for personality disorder.


3.  The medical records that the applicant submitted show the following:

      a.  She sought medical care on 10 June 2003 for lower back pain for
the previous 4 days.  She was to walk or bike at her own pace and distance
in place of running and was to forgo push-ups and sit-ups.


                    b.  On 28 June 2003 she visited a German Clinic.


      c.  At follow-up appointment for back pain on 15 July 2003, the
applicant reported the pain present for 1 month.


      d.   She had a medical appointment for abdominal muscle strain on
30 June 2003.  She reported it was exacerbated 3 weeks earlier when she was
carrying a chain.


      e.  On 21 July 2003 she was removed from a road march due to back pain
and numbness in the legs.  The physician’s impression was that of low back
pain was out of proportion to the examination findings and she was referred
for a CT scan and evaluation.


      f.  At the 22 July 2003 evaluation the applicant rated her pain at “9”
on a scale of 1 to 10 with “10” being the worst pain she had ever had.  Her
posture, gait, straight leg raise, range of motion and Waddell’s Signs were
all abnormal. Wikipedia@http//en.wikipedia.org, the only available
reference to cover the topic, indicates that Waddell's Signs are used to
identify or rule-out a non-organic (psychological) component of back
conditions.  Abnormal Waddell’s Signs would indicate a non-organic
component to the subject's back pain.  The reflexes were normal, as was
sensation and strength at the L4-L5 S1 level.  The applicant was returned
to her duty station and assigned to quarters for 1 day.  She was issued a
physical profile to expire on 25 August 2003.  She was to exercise at her
own pace and distance and stop for pain.  She was precluded from running,
jumping, marching and heavy lifting.  She was to go to physical therapy,
and see orthopedics for education and go to the emergency room if the
condition worsened.  She was supposed to get a CT scan, but the report is
not available.


      g.  On 4 August 2003 the applicant reported for medical care because
of blood in her stool.


      h.  On 6 August 2003, a psychiatrist diagnosed her as having a
borderline personality disorder and major depressive disorder, recurrent,
full remission; and stated that his findings and recommendations were based
on repeated evaluations and observations since 19 December 2002.  He stated
that she met the medical standards for retention in the Army and was
psychiatrically cleared for any administrative action deemed appropriate.
He recommended that she be separated because of her personality disorder.



i.  The medical history she submitted for an 11 August 2003 physical
examination reported 13 different problems including two bulging discs
numbness in legs, an ulcer, blood in stool, back hurts constantly,
temporary paralysis of legs after extended walking, insomnia, and
depression.


      j.  Her low back pain was reevaluated on 20 and 21 August 2003.  The
record indicates that she was doing better, but then tripped and fell.  A
new physical profile assigned a T3 rating under the L factor and extended
the restrictions on her activities to 15 September 2003.

4.  On 22 November 2003 the applicant was separated with an honorable
discharge due to personality disorder under the provisions of Army
Regulation 635-200, paragraph 5-13.

5.  Army Regulation 635-200 (Personnel Separations) provides the basic
authority for the separation of enlisted personnel.  Paragraph 5-13
provides that a Soldier may be separated for personality disorder, not
amounting to disability under Army Regulation 635-40, that interferes with
assignment to or performance of duty. The regulation requires that the
condition is a deeply ingrained maladaptive pattern of behavior of long
duration that interferes with the Soldiers ability to perform duty.  The
regulation also directs that commanders will not take action prescribed in
this chapter in lieu of disciplinary action, requires that the diagnosis
concludes the disorder is so severe that the Soldier’s ability to function
in the military environment is significantly impaired, and states that
separation for personality disorder is not appropriate when separation is
warranted under chapter 4, 5, 7, 9, 10, 11, 13, 14, or 15; Army regulation
604-10 or Army Regulation 635-40 (Physical Disability).

6.  Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that
for an individual to be found unfit by reason of physical disability, they
must be unable to perform the duties of their office, grade, rank or
rating.

7.  Army Regulation 635-40, paragraph 2-2b, as amended, provides that when
a member is being separated by reason other than physical disability, the
continued performance of duty creates a presumption of fitness which can be
overcome only by clear and convincing evidence that they were unable to
perform duties or that acute grave illness or injury or other deterioration
of physical condition, occurring immediately prior to or coincident with
separation, rendered the member unfit.


8.  Title 38, United States Code, sections 1110 and 1131, permit the
Department of Veterans Affairs (VA) to award compensation for disabilities
which were incurred in or aggravated by active military service.  However,
an award of a higher VA rating does not establish error or injustice in the
Army rating.  An Army disability rating is intended to compensate an
individual for interruption of a
military career after it has been determined that the individual suffers
from an impairment that disqualifies him or her from further military
service.  The VA, which has neither the authority, nor the responsibility
for determining physical fitness for military service, awards disability
ratings to veterans for conditions that it determines were incurred during
military service and subsequently affect the individual’s civilian
employability.  Accordingly, it is not unusual for the two agencies of the
Government, operating under different policies, to arrive at a different
disability rating based on the same impairment.  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 normally have to choose between the
VA pension and military retirement.

9.  The VA medical documents submitted by the applicant show that
disability benefits were first denied and then, upon appeal, granted for
lumbosacral strain rated at 40 percent and effective back to the day after
discharge.

DISCUSSION AND CONCLUSIONS:

1.  The record clearly shows that the applicant received a great deal of
medical attention, yet there is no available evidence that any medical
authority considered her to have been permanently unable to perform duty.

2.  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.


3.  The rating action by the VA does not necessarily demonstrate any error
or injustice in the Army rating.  The VA, operating under its own policies
and regulations, assigns disability ratings as it sees fit.  Any rating
action by the VA does not compel the Army to modify its rating.

4.  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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JEA __  __JLP___  __SWF__  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.



                                          James E. Anderholm________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004233                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061207                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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