RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 November 2007
	DOCKET NUMBER:  AR20070008332 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Michael J. Flynn

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 reinstatement on active duty, referral into the Physical Disability Evaluation System (PDES), and the removal of all records pertaining to her discharge under the provisions of paragraph 5-17, Army Regulation (AR) 635-200 (Personnel Separations).

2.  The applicant states, in effect, that the Army erroneously separated her under the provisions of AR 635-200, paragraph 5-17, for "other designated physical or mental conditions, include[ing] 'other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the soldier's ability to effectively perform military duties is significantly impaired.'"

3.  The applicant provided a copy of her DD Forms 214 (Certificate of Release or Discharge from Active Duty) in support of her application. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant’s reinstatement on active duty, referral to an MEB, referral to a PEB, and removal of all records of her separation. 

2.  Counsel states that there are three errors associated with the applicant’s separation:

	a.  She had a well documented history of depression and suffered from a major depressive order that culminated in her attempted suicide.  These facts warranted the initiation of an MEB under paragraph 3-32 of Army Regulation   40-501 (Standards of Medical Fitness), 

	b.  The use of separation under the provisions of paragraph 5-17 of Army Regulation 635-200 (Personnel Separations) for “other designated” mental conditions was wholly inappropriate under the circumstances, and 

	c.  The Criminal Investigation Division (CID) manufactured the circumstances that exacerbated a pre-existing and documented mental disorder. 

3.  Counsel states that medical records have been requested but have not been obtained and that as soon as they become available, the applicant will forward to the Army Board for Correction of Military Records (ABCMR) in support of her application.  Additionally, Counsel provided a lengthy supplemental statement describing the events that led to the applicant’s separation.  In his supplemental statement, Counsel stressed the following points:
	a.  In early 2004, while stationed in Korea, the applicant was involved in a relationship with and eventually was married to another Soldier in her command (Mr. M********).  In November 2005, while training at Fort Lewis, Washington, for her unit's upcoming deployment to Iraq, the applicant suffered a tragic death of her mother and found out the man she was married to, was in fact still married to another woman.  

	b.  In December 2005, the applicant and her spouse were investigated by the CID for adultery and making false statements.  The applicant was not charged with misconduct and was deemed to have been the victim of bigamy.  However, the spouse remained under investigation.  

	c.  On 20 December 2005, the applicant was given the "No Contact" order which Counsel states "served to exacerbate her personal and emotional problems."

	d.  On 23 December 2005, still at Fort Lewis, Washington, the applicant spent two days of hospitalization at the psychiatric ward for suicidal tendencies.  She was prescribed "Lexapro" to treat her depression.

	e.  On 30 December 2005, the applicant returned to Korea under the assumption that her chain of command arranged a meeting with her spouse.  However, Counsel states that the chain of command tricked the applicant into returning to Korea to undergo a fit for duty determination.

	f.  On 3 January 2006, the applicant returned to an outpatient psychiatric clinic in Korea.  Despite passing her initial evaluation, she contemplated suicide that evening, but decided to admit herself to the 121st General Hospital, Korea.  She was discharged on 13 January 2006, but continued to receive mental health care through the outpatient clinic. 

	g.  On 3 March 2006, her commander extended the "No Contact" order and, on 15 March 2006, she was ordered to undergo a command-directed psychological evaluation.  Subsequently, separation action was initiated and was approved on 20 April 2006.

	h.  Counsel stated that the applicant had a well-documented history of depression that warranted the initiation of an MEB in accordance with paragraph 3-32 of Army Regulation 40-501.  Counsel added that the use of separation under paragraph 5-17 of Army Regulation 635-200 was wholly inappropriate under the circumstances.  He concluded that the applicant's unit (CID) manufactured the circumstances that exacerbated a pre-existing, documented mental disorder.

	i.  Counsel mentioned several enclosures in his Supplemental Statement; however, none of the enclosures were attached to the request.  They are, therefore, not available for review with this case.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service in the United States Navy, the applicant enlisted in the Regular Army on 11 June 1997 at age 23.  She was initially trained in military occupational specialty (MOS) 91W (Health Care Specialist), and she rose to the rank of staff sergeant (SSG)/pay grade E-6.

2.  The applicant's records show that she arrived in Korea on permanent change of station (PCS) orders on 13 May 2003.  She was assigned to 568th Medical Company, Korea, and initially performed duties related to MOS 91W from May through September 2003.  In October 2003, although still assigned to the 568th Medical Company, she began a USACIDC internship with the Camp Humphreys CID Resident Agency, Korea, where she served as a Criminal Investigations Intern through April 2004.  During this period, she met SSG JLM and began a relationship.

3.  The applicant was reassigned from Korea to Fort Bragg, NC in May 2004.  She was assigned to the 261st Medical Battalion (Rear Detachment) for duty with the 87th Military Police Detachment (CID) as a Criminal Investigations Intern.  On 3 July 2004, she married SSG JLM.  She continued her internship through December 2004.

4.  The applicant was transferred to the US Army Military Police School, Fort Leonard Wood, MO to attend the Apprentice Special Agent Course from 6 January 2005 through 22 April 2005.  Upon successful completion of the course, she was awarded MOS 31D (CID Special Agent).  She was then transferred to Korea and assigned to the 20th Military Police Detachment (CID) with duty in her new MOS.  On 7 July 2005, she reenlisted in the Regular Army for a period of 4 years in MOS 31D.

5.  Although the precipitating event is not a matter of record, the applicant's commander, on 30 December 2005, issued her a written memorandum ordering her to:


	a.  have "no contact, direct or indirect, by any means, with SSG [JLM];"

	b.  remain within the limits of a specific area [Area II, Yongsan]; and

	c.  refrain from consuming alcoholic beverages until further notice.

This order was initiated due to an ongoing official inquiry of unknown nature by the applicant’s battalion commander.

6.  On 13 January 2006, after a diagnosis by a Mental Health Clinic psychiatrist, the applicant’s immediate commander, in the interest of the applicant’s well-being, issued a “Further Restriction Order” restricting her to the unit barracks area and identifying several senior noncommissioned officers to escort her if she needed to depart her quarters.

7.  On 20 January 2006, the applicant’s immediate commander eased her restriction and allowed her free access to the installation, with permission, but maintained the “no alcohol” restriction.

8.  On 3 March 2006, the applicant’s immediate commander, out of concern for her well-being, reiterated his “No Contact Order” with SSG JLM and instructed her not to be in the proximity of his barracks.

9.  On 20 March 2006, the applicant’s immediate commander counseled the applicant regarding his intent to initiate separation proceedings under the provisions of paragraph 5-17 of Army Regulation 635-200.  The commander cited her poor coping mechanism, long standing difficulties with depression that predated her military service, and her trial of rehabilitation without significant improvement.  The commander also outlined a plan of action that included the applicant undergoing a medical examination and consultation with Trial Defense Services.  The applicant initialed and signed the counseling form indicating she understood and agreed with the plan of action.

10.  The applicant's records show that she underwent a “Command Referral” mental status evaluation on 15 March 2006.  The attending military psychiatrist found her to have "normal behavior, fully alert and oriented, clear thinking process, normal thought content, and good memory."  He also noted that she was depressed.  The psychiatrist’s impression was that the applicant was mentally responsible and met the retention requirements in Army Regulation 40-501.  His evaluation concluded that the applicant carried an unspecified depressive disorder.  He further remarked that she had longstanding difficulties with depression that predated her military service, that her trial of rehabilitation was without significant improvement, and that she exhibited a poor coping mechanism.  After discussing separation from the Army with the applicant and finding her in agreement, he recommended the applicant be administratively discharged in accordance with the provisions of paragraph 5-17 of Army Regulation 635-200.

11.  On 20 March 2006, the applicant’s immediate commander initiated action to separate her for mental conditions that prohibited her from functioning effectively on active or Reserve duty.  He cited her longstanding difficulty with depression that predated her military service, underlying depression with poor coping mechanisms, and an impaired ability to perform her military duties. He recommended an Honorable Discharge.

12.  On 22 March 2006, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation for longstanding difficulty that predated her military service, underlying depression with poor coping mechanism, and impaired ability to perform military duties, the effects of this separation, and the rights available to her of a waiver of those rights.  She waived consideration of her case by an administrative separation board, waived personal appearance before an administrative separation board, and declined submitting a statement. 

13.  On 5 April 2006, the applicant underwent a medical examination where her physical profile, or PULHES, was determined to be “111111” indicating she was medically qualified for separation from the Army with no underlying medical problems.

14.  On 11 April 2006, the applicant’s intermediate commander recommended approval of the separation under the provisions of paragraph 5-17 of Army Regulation 635-200.  He further recommended an Honorable Discharge.

15.  On 20 April 2006, the separation authority approved the applicant’s separation in accordance with paragraph 5-17 of Army Regulation 635-200 for “Other designated physical and mental conditions” and directed the applicant receive an Honorable Discharge Certificate.  The DD Form 214 she was issued at the time of her separation confirms that she was honorably discharged on 7 May 2006 in accordance with paragraph 5-17 of Army Regulation 635-200.  This form further confirms that she completed 11 years, 5 months, and 19 days of creditable service.


16.  Army Regulation 635-200 (personnel Separation) provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17 provides that a Soldier may be separated for other physical or mental conditions not amounting to a disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), that interferes with assignment to or performance of duty.  The regulation requires that the condition 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.  Army policy states that the service of personnel separated under this paragraph will be characterized as honorable, general, under honorable conditions, or uncharacterized if in entry-level status.   A general, under honorable conditions discharge is normally inappropriate for individuals separated under the provisions of Chapter 5-17.  

17.  Army Regulation 600-60  implements and establishes operating procedures for the Physical Performance Evaluation System (PPES), and states in pertinent part that the PPES is a program designed to evaluate Soldiers who have been issued a permanent physical profile with a numerical designator of 3 or 4 under any physical profile serial code.  The PPES establishes the MMRB as an administrative screening board to determine if Soldiers have the physical ability   to satisfactorily perform in their specialty or branch worldwide and in a field environment.  Soldiers with temporary profiles and Soldiers with a permanent profile serial of 1 or 2 will not be referred to the MMRB.

18.  Army Regulation 40-3, chapter 7, provides for medical evaluation boards (MEBs), and are convened to document a service member’s medical status and duty limitations insofar as duty is affected by the member’s medical status.  Situations that require consideration by a MEB include those involving Reserve component personnel on active duty for training (ADT) or inactive duty for training (IDT), whose fitness for further military service upon completion of hospitalization is questionable, and those who require hospitalization beyond the termination of their tour of duty.  Consideration by a MEB also includes those involving a Reserve component member who requires evaluation because of a condition that may render him unfit for further duty.

19.  Physical evaluation boards are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish eligibility of a Soldier to be separated or retired because of physical disability.

20.  Army Regulation 635-40, governs the evaluation for physical fitness of Soldiers who may be unfit to their military duties because of physical disability.  This regulation applies to the Active Army, the Army National Guard and the U.S. Army Reserve.  Paragraph 3-2b of this regulation provides for retirement or separation from active service.  This provision of regulation 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 is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement creates a presumption that the soldier is fit.

21.  Chapter 61, Title 10, U.S. Code provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability.  The US Army Physical Disability Agency, under the operational control of the Commander, US Army Human Resources Command (USAHRC), Alexandria, VA, is responsible for operating the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in Chapter 61, 10 USC, and in accordance with Department of Defense (DOD) Directive 1332.18 and Army Regulation 635-40.  
Soldiers enter the Physical Disability Evaluation System four ways:  

	a.  Referred by a Medical Evaluation Board (MEB).  When a Soldier has received maximum benefit of medical treatment for a condition that may render the Soldier unfit for further military service, the medical treatment facility (MTF) conducts a MEB to determine whether the Soldier meets the medical retention standards of AR 40-501, chapter 3.  If the Soldier does not meet medical retention standards, he or she is referred to a Physical Evaluation Board (PEB) to determine physical fitness under the policies and procedures of AR 635-40; 

	b.  Referred by the MOS/Medical Retention Board (MMRB).  The MMRB is an administrative screening board the chain of command uses to evaluate the ability of Soldiers with permanent 3 or 4 medical profiles to physically perform in a worldwide field environment in their primary military occupation specialty.  Referral to a MEB/PEB is one of the actions the MMRB Convening Authority may direct; 
	c.  Referred as the result of a fitness for duty medical examination.  When a commander believes a Soldier is unable to perform MOS-related duties due to a medical condition, the commander may refer the Soldier to the MTF for evaluation.  If evaluation results in a MEB, and the MEB determines that the Soldier does not meet medical retention standards, the Soldier is referred to a PEB; and 

	d.  Referred as a result of HQDA action.  The Commander, US Army Human Resources Command (USAHRC), upon recommendation of The Surgeon General, may refer a Soldier to the responsible MTF for medical evaluation as described in (3) above.  USAHRC also directs referral to a PEB when it disapproves the MMRB recommendation to reclassify a Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that she should be reinstated on active duty to undergo an MEB and a PEB and that her discharge packet should be removed from her records.

2.  Evidence of record shows that the applicant coped poorly with rehabilitation efforts and that her longstanding difficulty that predated her military service and impaired ability to perform military duties as evidenced by the military psychiatrist that examined the applicant.  There is no evidence in the applicant's records (Permanent Profile) and the applicant failed to provide sufficient evidence to show that convening a Medical Evaluation Board was warranted.   There is no evidence in the applicant's records and the applicant failed to provide sufficient evidence to show that a Medical Evaluation Board or a Physical would have otherwise changed the outcome of her separation.  

3.  Evidence of record shows that the unit commander notified the applicant of initiation of separation action under the provisions of paragraph 5-17 of Army Regulation 635-200, by reason of other designated physical and mental conditions, under honorable conditions.  She was advised of her rights.  The applicant consulted with legal counsel, was advised of the impact of the discharge action, and waived a hearing by a board of officers, and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the service.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an honorable discharge.  On 7 May 2006, the separation authority approved the separation with an honorable characterization of service.  

4.  There is no evidence in the applicant's records that the CID manufactured the circumstances.  The applicant, a CID agent herself, simply made a poor judgment.  Evidence of record shows that during her lengthy relationship with a married person, the applicant was a mature noncommissioned officer, with 9 years of military service, a leader of Soldiers who not only was supposed to set the example for her Soldiers but prepare them mentally and physically for an upcoming deployment to a war zone.

6.  In view of the foregoing evidence, the applicant is not entitled to a relief in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__klw___  __lmd___  __mjf___  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.




							Kenneth L. Wright
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070008332
SUFFIX

RECON

DATE BOARDED
20071106
TYPE OF DISCHARGE
(HD)
DATE OF DISCHARGE
20060507
DISCHARGE AUTHORITY
AR 635-200, Chap 5
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
110.0300
2.

3.

4.

5.

6.