IN THE CASE OF:	  

		BOARD DATE:	        21 August 2008

		DOCKET NUMBER:  AR20080004855 


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, correction of the narrative reason for separation from “other” [sic] (Local Imposed Bar to Reenlistment) to “service connected disability.”

2.  On 12 August 2008, the applicant submitted a self-authored statement, dated 3 July 2008, stating that she wants to change the narrative reason for separation from "other" to "Medical Discharge" with 100 percent service connected disability. She also adds that her record should have shown that she underwent a Medical Evaluation Board (MEB) and a Physical Evaluation Board (PEB) and that the PEB referred her to the Temporary Disability Retired List (TDRL). 

3.  The applicant states that she was sexually assaulted during her military service and that she requested to get out of the Army, due the manner that she was treated after the assault.  She further adds that the chapter under which she was separated was supposed to be a rehabilitative discharge with potential for reentry.  However, because of the bar to reenlistment entry on her records, no one knew what that meant and she did not get the rehabilitation she needed.  She is now totally and permanently disabled for Post Traumatic Stress Disorder (PTSD).

4.  The applicant provided a copy of the Department of Veteran Affairs Rating Decision, dated 5 May 2007, in support of her application.

5.  On 12 August 2008, the applicant submitted a self-authored statement, dated 3 July 2008, in support of her application.
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 that she enlisted in the Regular Army for a period of 2 years and 20 weeks on 20 September 1990.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76V (Materiel Storage and Handling Specialist).  The highest rank/grade she attained during her military service was private (PV2)/E-2.

3.  The applicant's records show she served in Hawaii from 10 April 1991 to 9 July 1991.  Her awards and decorations include the Army Service Ribbon, the National Defense Service Medal, the Army Lapel Button, and the Expert Marksmanship Qualification Badge with Rifle Bar.  Her records do not reveal significant acts or achievements during her military service.

4.  On 19 April 1991, the applicant failed a record Army physical fitness test (APFT).  She was subsequently placed on a remedial physical fitness program and was retested on 20 May 1991; however, she failed again. 

5.  On 4 June 1991, the applicant was counseled by her supervisor who informed her that she would continue on a remedial physical fitness program and that he would recommend to her immediate commander initiation of a bar to reenlistment.  The applicant acknowledged having been counseled and understood the reason for this counseling.  She further concurred that the information stated on the DA Form 4856 (General Counseling) accurately reflected the counseling session.

6.  On 14 June 1991, the applicant failed a third consecutive APFT.  She was subsequently counseled by her immediate commander who informed her that “further performance of this nature may result in separation under the provisions of Army Regulation 635-200 (Personnel Separations), and that if she was discharged with a General Discharge Certificate, she would encounter substantial prejudice in civilian life and possible loss of veterans benefits.”  The immediate commander offered his help to ensure the applicant succeeded.  The applicant acknowledged having been counseled and understood the reason for this counseling.  She further concurred that the information stated on the DA Form 4856 accurately reflected the counseling session.  

7.  On 12 June 1991, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing her three APFT failures.  The applicant was furnished a copy of the bar and elected to submit a statement on her own behalf.  After considering her statement, the applicant’s battalion commander approved the Bar to Reenlistment Certificate on 18 June 1991.  The applicant elected not to appeal the bar to reenlistment.  

8.  On an unknown date in June 1991, the applicant voluntarily requested to be eliminated from the Army under the provisions of paragraph 16-5b of Army Regulation 635-200 (Personnel Separations), by reason of her inability to overcome the bar to reenlistment.  In her request, the applicant indicated that she understood if her request was approved, it would be for her own convenience and that once separated, she would not be permitted to reenlist at a later date.

9.  On 25 June 1991, the applicant’s immediate commander recommended approval of the applicant’s request.  The immediate commander further remarked that he personally interviewed the applicant and that she felt she would not be able to overcome the bar to reenlistment.  

10.  On 25 June 1991, the separation authority approved the applicant's separation for non-retention on active duty, in accordance with chapter 16-5 of Army Regulation 635-200 and directed her term of service be characterized as honorable.  On 11 July 1991, the applicant was discharged accordingly.  The 
DD Form 214 she was issued at the time confirms she completed a total of 9 months and 22 days of active military service.  Item 25 (Narrative Reason for Separation) shows the entry “Locally Imposed Bar to Reenlistment” and Item 27 (Reentry Code) shows the entry “RE-3.”

11.  The applicant submitted a copy of the DVA Rating Decision, dated 5 May 2007, that shows she is diagnosed with bipolar disorder, PTSD, also claimed as agoraphobia, generalized anxiety disorder, paranoia, panic disorder, and phonophobia and that she is assigned a 100 percent disability rating, effective 4 August 2006.

12.  There is no indication in the applicant’s records that she suffered from or was diagnosed or treated for PTSD or any other medical condition.
13.  In her self-authored statement, dated 3 July 2008, the applicant states the following:

	a.  that she should not have been separated under chapter 16-5 of Army Regulation 635-200 based on her service records.  She also adds that she was a star Soldier, was selected as first runner-up in the Soldier of the Cycle during her basic training with a "No fault" battalion inspection.  She was selected as the Soldier of the Cycle when her 54-person platoon passed a "No fault" battalion inspection; and during her tenure in Hawaii, she led her office to a "No fault" battalion inspection; and

	b.  the Army made a grave error, not only because she was one of the best, but also because the Army did not have control over its commanders at every level in 1991.  Sexual harassment issues were at horribly high numbers during the Gulf War era and Fort Jackson, South Carolina, was undergoing serious issues with some officers being dismissed for misconduct.  She appeals to the Board to grant her a medical discharge with TDRL status.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), 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.

16.  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.

17.  Title 38, U.S. 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her narrative reason for separation should be changed to show she was separated due to a service connected disability.

2.  The evidence of record shows that subsequent to her two APFT failures, the applicant was placed on a remedial physical training program and was counseled regarding her responsibility to meet Army fitness standards.  However, she failed a third APFT and was barred from reenlistment as a result.  She subsequently voluntarily, willingly, and in writing requested separation from the Army for inability to overcome the bar to reenlistment.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. There does not seem to be an error or an injustice in her discharge. 

3.  With respect to medical disability retirement, there is no evidence in the available records and the applicant failed to submit any evidence that shows she suffered from PTSD or any other medical condition during her nearly 10 months of military service.  Furthermore, there is no evidence in the applicant's records and the applicant did not submit any evidence that she had a medical condition which would have warranted his referral to the Physical Disability Evaluation System (PDES).  Therefore, she was not considered by a MEB.  Without an MEB, there would have been no basis for referring her to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge, or retirement, for physical disability.

4.  Further, there is no evidence in the available record and the applicant did not provide any substantiating evidence that shows she was sexually assaulted during her military service.  Furthermore, there is no evidence that the applicant’s APFT failure, bar to reenlistment, and subsequent voluntary request for separation were the result of a sexual assault. 



5.  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 evidence that would satisfy this requirement.  Therefore, she is not entitled to relief.

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.



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               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)                                         AR20080004855



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ABCMR Record of Proceedings (cont)                                         AR20080004855



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