RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060011628 


	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.  



	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, a medical discharge.

2.  The applicant states, in effect, that he was unable to complete his enlistment due to medical conditions.  After his discharge the Department of Veterans Affairs (DVA) rated his disabilities that he sustained while on active duty. 

3.  The applicant provides a copy of his DVA Rating Decision dated 21 June 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Army from 6 March 2001 through
15 September 2005.  He attained the grade of specialist/E-4 and received the Good Conduct Medal, the National Defense Service Medal, the Global War on Terrorism Service Medal, the Army Service Ribbon, and the Parachutist Badge.

2.  The applicant was separated under the provisions of Army Regulation
635-200 (Active Duty Enlisted Administrative Separations), chapter 5-13, by reason of a personality disorder.  The official record contained a properly constituted Report of Mental Status Evaluation (DA Form 3822-R), dated 1 June 2005.  This report indicates the applicant was evaluated as an inpatient after a suicide attempt by overdose.  He attributed his behavior to worsening depression related to conflict with his ex-girlfriend over visitation rights for his son and conflict with his direct supervisor.  He also reported chronic low back pain secondary to an injury sustained during a parachute jump.  The applicant also gave a history of illicit drug use but reported he had been drug-free since his enlistment.  He was diagnosed with a depressive disorder, not otherwise specified and a borderline personality disorder.  The examiner indicated that his personality disorder was a deeply ingrained maladaptive pattern of behavior of long duration that interfered with the applicant's ability to function effectively in the military and recommended that he be administratively separated as soon as possible.

3.  The applicant submitted a copy of his DVA Rating Decision, dated 21 June 2006.  The applicant's service medical records (SMR) were available for the DVA's review; however, they were not available for review by this Board.  The DVA examined the applicant's SMRs which showed that he received services from the Life Skills Support Center in January 2005 and was prescribed Zoloft, Abilify, and Seroquel under a working diagnosis of an adjustment disorder with mixed anxiety and depressed mood due to partner relational problems and sleeping difficulty.  He was admitted to West Florida Hospital after a suicide attempt, from 9 May 2005 through 18 May 2005.  He reported ongoing legal, financial, occupational, and relationship problems with his wife as well as custody of a child.  He expressed a desire to terminate his military service.  He was diagnosed with an adjustment disorder and a major depressive episode; borderline and antisocial traits were noted.  On 19 May 2005, the applicant was transferred to the Gulfport VA Medical Center where the applicant reported a prior history of polysubstance abuse, childhood sexual trauma, and treatment for attention deficit disorder.  He was discharged on 24 May 2005 with a diagnosis of bipolar disorder and prescribed psychotropic medication.  He rejoined services from the Life Support Skills after returning to a military facility.

4.  During his VA examination, the applicant's mental status examination was negative for psychotic symptoms and was essentially unremarkable except of an euthimic mood with occasional anxiety.  The diagnosis was bipolar I disorder.  No other mental disorders were diagnosed and no social or industrial limitations were noted as secondary to subject disorder.  The physician opined that his bipolar disorder was likely as not the result of Army service, and excluded his pre-enlistment history of drug abuse, childhood sexual abuse and attention deficit hyperactivity disorder as causative factors.  The VA resolved all reasonable doubt in favor of the applicant and service connection was granted for bipolar disorder, rated as 10 percent disabling.  

5.  The applicant was also granted service connection for an L5-S1 degenerative disc disease, with chronic myositis secondary to an old fracture, T12 as directly related to an awkward parachute landing, rated as 10 percent disabling.  Service connection for right ear hearing loss was also granted, evaluated as 0 percent disabling.

6.  Army Regulation 635-200 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 be a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldiers’ ability to perform duty, and requires that the diagnosis be so severe that the Soldier’s ability to function in the military environment is significantly impaired.  The regulation also directs that commanders will not take action prescribed in this chapter in lieu of disciplinary action, and 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.  Army policy requires the award of a fully honorable discharge in such cases.
7.  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 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 Army Regulation 40-501 (Standards of Physical Fitness), chapter 3.  If the Medical Evaluation Board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB).

8.  The objectives of the Army Physical Disability Evaluation System (PDES) system are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability; and provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected.  Soldiers are referred into the PDES system when they no longer meet medical retention standards in accordance with chapter 3, AR 40-501, as evidenced in a medical evaluation board; receive a permanent medical profile and are referred by an MOS/Medical Retention Board; are command-referred for a fitness for duty medical examination; or are referred by the Commander, US Army Human Resources Command (HRC).  A service member is referred to an MEB by a unit commander or a physician when it is believed that he/she may possesses one or more medical conditions that cause him/her to fail to meet retention standards.  A service member does not "apply” or self-refer for evaluation by an MEB.

9.  Paragraph 3-1 of Army Regulation 635-40 provides that the mere presence of 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating.

10.  Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

11.  Title 38, United States Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA 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 DVA, which has neither the authority, nor the responsibility for determining physical fitness for the 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.

12.  Unlike the Army, the DVA 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 DVA 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 DVA disability pension.  By law, a veteran can normally be compensated only once for a disability.  If a veteran is receiving a DVA 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 DVA pension and military retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's SMR's were not available for the Board's review; however, the DVA rating decision provided a summary of the applicant's medical history.  The official record did contain a properly constituted mental health evaluation showing the applicant was diagnosed with a personality disorder.  Although the examiner noted the applicant was hospitalized and treated for a suicide attempt, there was no diagnosis of a bipolar disorder.  

2.  There is no indication the applicant was referred to the Army PDES system because he no longer met medical retention standards in accordance with chapter 3, AR 40-501:  Further, Army regulations provide that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In accordance with Army Regulation 635-200, the applicant was administratively separated due to a diagnosed personality disorder, which did not amount to disability.  

3.  The DVA rating decision provided by the applicant does not establish entitlement to medical retirement or disability separation from the Army.  Operating under different law and its own policies and regulations, the DVA, which has neither the authority, nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service; i.e., service-connected.  Furthermore, the DVA 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. 

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  Therefore, there is no basis to change the applicant's narrative reason for discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __lwr___  __reb___  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.



						Margaret K. Patterson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011628
SUFFIX

RECON

DATE BOARDED
20070315
TYPE OF DISCHARGE
(HD)
DATE OF DISCHARGE
20050915
DISCHARGE AUTHORITY
AR 635-200, Chap 5
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.8600
2.

3.

4.

5.

6.