RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 February 2007
	DOCKET NUMBER:  AR20060008409 


	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.



Director



Analyst


The following members, a quorum, were present:



Chairperson


Member


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, reconsideration of the Army Board for Correction of Military Records (ABCMR) denial of his request for disability retirement.

2.  The applicant states, in effect, his discharge should have been a medical retirement due to his having been diagnosed with clinical depression due to the diagnosis of Human Immunodeficiency Virus (HIV) from a workplace accident.  The applicant states that his separation authority should have been the U.S. Army Physical Disability Agency (USAPDA).  The applicant further states there is no evidence of at least a partial Army disability rating when he was discharged.  The applicant further states because he was not medically retired, he lost the medical benefits for treatment of his service-connected conditions.

3.  The applicant provides his unsigned statement, dated 2 April 2006 and his statement dated 8 June 2006.  The applicant also provides copies of:  Department of Veterans Affairs (DVA), San Diego Healthcare System letter, dated 18 July 2005; progress notes, dated from 2 February 2005 to 18 August 2005, from the San Diego Healthcare System; and an article from www.military.com entitled Military Ignores Mental Illness.

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 AR 20050010474, dated 11 May 2006.

2.  In the original findings, the ABCMR found that the applicant did not have a physical disability that did not meet retentions standards.  

3.  The documents submitted by the applicant are new evidence and will be considered by the Board.  

4.  In his unsigned statement, dated 2 April 2006, the applicant describes the outlook on his life due to his diagnosis of HIV.

5.  In his statement, dated 8 June 2006, the applicant restates his argument that he was treated unjustly and that his depression was ignored by his company commander.  The applicant states that his case should have been referred to the USAPDA for rating and that he should have received a medical retirement.  The applicant further states that he needs a medical retirement in order to receive  quality care for his disabilities.

6.  A psychiatric consult, ordered 10 August 2000, ruled out a mood disorder secondary to an organic medical condition: HIV- related illness, a major depressive disorder, and post-traumatic stress disorder.  According to the consult the applicant was diagnosed with an adjustment disorder with depressed mood.  The consult stated the prognosis for the applicant’s depression was fair to good.

7.  Headquarters, Tripler Army Medical Center, Tripler Army Medical Center, Hawaii letter, dated 3 October 2000, states that the applicant was found to be HIV positive and that he met medical retention standards.

8.  DVA letter, dated 18 July 2005, states the applicant is not satisfied that his DVA disability rating of 50 percent for his depression was not increased.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEBD.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

10.  Army Regulation 635-40 provides, in pertinent part, for the USAPDA to review PEB proceedings to ensure that Soldiers are given uniform and fair consideration under applicable laws, policies, and directives.

11.  Title 38, United States Code, 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.  The DVA, 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 DVA benefits based on an evaluation by that agency.  The DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged from the Army by his own request as provided by Army regulations.

2.   The evidence shows, at the time of his discharge, the applicant was being treated for HIV and depression due to his diagnosis of HIV.  However, there is no evidence that the applicant did not meet retention standards for these or any other medical conditions at the time he requested to be discharged.

3.  There is no evidence of record and the applicant has not submitted any evidence that he had a medical condition which would have warranted him being considered by a MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retired for physical unfitness.  Therefore, there is no disability rating determination by the Army.

4.  Without a PEB, there are no provisions for the applicant’s case to be reviewed by the USAPDA.

5.  The DVA, 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 employability.  Accordingly, it is not unusual for the DVA to award a veteran a disability rating when the veteran was not separated due to physical unfitness.  Furthermore, the DVA can evaluate a veteran throughout his or her lifetime, awarding and/or adjusting the percentage of disability of a condition based upon that agency’s examinations and findings.  

6.  The progress notes, submitted by the applicant, show the current medical status of his medical conditions, five years after his discharge.

7.  The applicant’s concerns about his medical treatment are noted.  However, disabilities which are incurred during military service or worsen after a Soldier is separated are treated by and compensated for by the DVA.  Any claims or issues concerning treatment or compensation for service connected disabilities should be addressed to that Agency.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____lmd_  ____lcb__  ___tsk__  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 to amend the decision of the ABCMR set forth in Docket Number AR20050010474, dated 11 May 2006.




_________Ted S. Kanamine______
          CHAIRPERSON




INDEX

CASE ID
AR20060008116
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070227
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.

2.

3.

4.

5.

6.