IN THE CASE OF:	  

	BOARD DATE:	  13 May 2008

	DOCKET NUMBER:  AR20070017690 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, her 9 May 1996 Regular Army separation by reason of release from active duty be changed to an Honorable Discharge by reason of physical disability.

2.  The applicant states the Department of Veterans Affairs (DVA) has rated her as 50 percent disabled with service connection for "major depressive disorder, moderate to severe, without psychotic features, with trichotillomania."  She states her service medical records document her depression as job-related.

3.  The applicant provides a copy of a DVA Rating Decision, dated 17 December 1998.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show she enlisted in the US Army Reserve (USAR) for 8 years on 10 December 1991.  Upon enlistment, she did not indicate, nor was she found to have a psychiatric problem.

3.  The applicant served on active duty from 28 July 1992 through 26 November 1992, during which time she was awarded military occupational specialty (MOS) 75E (Personnel Actions Specialist).  Upon her release from active duty, she was returned to her USAR Troop Program Unit (TPU).

4.  Orders 20-1, Headquarters, 122nd United States Army Reserve Command (USARC), North Little Rock, Arkansas, dated 18 June 1993, relieved the applicant from her TPU assignment as an unsatisfactory participant.

5.  On 5 January 1994, the applicant enlisted in the Regular Army (RA) for a period of 3 years.  She was awarded MOS 75D (Record Specialist) and assigned to Company A, 1st Battalion, 11th Infantry Regiment, Fort Benning, GA.

6.  The applicant's records show she received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 11 March 1996 for being absent without authority from her unit from on/about 26 February 1996 to on/about 27 February 1996.  As punishment, she was reduced from Specialist (SPC/E-4) to Private First Class (PFC/E-3), given a forfeiture of $271.00 pay (suspended), and 14 days of extra duty.  On 20 March 1996, she received a second NJP for being derelict in her duties while undergoing Army Physical Fitness Testing (APFT) on/about 18 March 1996.  As punishment, she was reduced from PFC to Private (PVT/E-2), given a forfeiture of $228.00, and 14 days of extra duty.

7.  On 9 May 1996, the applicant was separated under the provisions of Army Regulation (AR) 635-200, paragraph 16-5b, by reason of a locally-imposed bar to reenlistment.  She was given an honorable characterization of service and transferred to the USAR Control Group (Reinforcement).

8.  In a memorandum dated 28 October 1997, the 2nd Judge Advocate General Detachment, New Orleans, LA accepted the applicant into the unit.  However, the applicant never reported to the unit and never attended a drill.  On 6 October 1999, she was reassigned to the USAR Control Group (Reinforcement) as an Individual Ready Reserve No-Show.

9.  Orders D-12-981906, Headquarters, USAR Personnel Command, St. Louis, MO, dated 14 December 1999, discharged the applicant from the USAR with an Honorable Discharge.

10.  The applicant's RA medical records were not available for review; however, the available records indicate she did not report psychiatric difficulties upon her enlistment and she was not diagnosed with psychiatric difficulties upon discharge from the RA.  Further, her discharge was as the result of a locally-imposed bar to reenlistment, not because of a medical inability to perform her duties.

11.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

12.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.

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

14.  Title 38, United States Code, sections 310 and 331, permits the DVA to provide treatment and to award compensation for disabilities which were incurred in or aggravated by active military service.

15.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-1, provides that the mere presence of an 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 Soldier reasonably may be expected to perform because of his or her office, rank, grade or rating.

16.  Paragraph 3-2b(1) of the regulation provides 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.

17.  Paragraph 3-2b(2) further provides that when a Soldier is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that 

he or she was unable to perform his or her duties for a period of time 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.

18.  Trichotillomania is classified in the DSM-IV an impulse control disorder characterized by the repeated urge to pull out scalp hair, eyelashes, facial hair, nose hair, pubic hair, eyebrows or other body hair, sometimes resulting in noticeable bald patches.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an "Honorable Discharge" by reason of physical disability.  She bases her request on the fact that the DVA in 1998 awarded her a 50 percent disability rating for service-connected problems.

2.  The fact that the DVA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Army purposes.

3.  An award of a DVA rating does not establish entitlement to medical retirement or 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 (service-connected) and affects the individual’s civilian employability.  Furthermore, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

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

__xxx___  __xxx___  __xxx___  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.



							XXX
       _   _______   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20070017690





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20070017690



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1