IN THE CASE OF:	   

		BOARD DATE:	       4 December 2008

		DOCKET NUMBER:   AR20080009322 


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, a medical retirement.

2.  The applicant states, in effect, that he was discharged based on a condition that was not considered a disability.  He indicates that the Department of Veterans Affairs (VA) granted him a 50 percent (%) service connected disability rating for Post Traumatic Stress Disorder (PTSD) one day after his discharge from the Army and increased his disability rating to 70% within one year of his discharge.

3.  The applicant provides a VA rating decision, dated 26 May 2006, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows that he entered the period of active duty service under review on 22 September 1992.  His record shows he held and served in military occupational specialty (MOS) 92G (Food Service Operations), and that sergeant (SGT) was the highest rank he attained and held while serving on active duty.  


2.  The applicant’s record also shows that during his active duty tenure, he earned the following awards:  Army Commendation Medal, Army Achievement Medal (4th Award), Joint Meritorious Unit Award, Army Good Conduct Medal 
(3rd Award), National Defense Service Medal, Korea Defense Service Medal, Humanitarian Service Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon
(2nd Award), Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, and the Iraq Campaign Medal.

3.  The applicant’s Official Military Personnel File (OMPF) contains seven records of formal counseling he received between 4 April and 20 October 2005, which show he was counseled by members of his chain of command for a myriad of disciplinary infractions that included the following:  dereliction of duty, failure to regularly conduct personal hygiene, removal from his squad leader position, lack of integrity, failure to maintain positive control of sensitive items, and early separation for cause.  

4.  On 8 October 2005, a Suspension of Favorable Actions (FLAG) was initiated against the applicant based on an adverse action.

5.  On 17 October 2005, the applicant underwent a mental status evaluation during which the examining physician found the applicant's behavior and thought content were normal, that he was fully alert and oriented, his mood and affect were depressed, and that his thinking process was clear.  The examining physician further determined that the applicant had the mental capacity to understand and participate in separation proceedings, and that he was mentally responsible and met medical retention standards.  The examining psychiatrist psychiatrically cleared the applicant for any action deemed appropriate by his command and finally recommended that he be administratively separated under the provisions of Paragraph 5-17, Army Regulation 635-200.

6.  On 19 October 2005, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order given by his superior noncommissioned officer (NCO) and for dereliction of duty.


7.  On 22 October 2005, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of 
Army Regulation 635-200, paragraph 5-17, for other designated physical or medical conditions.  He cited the applicant’s depressed behavior, which precluded him from being able to perform combat operations; his dereliction of duty on 3 April, 18 June, and 6 October 2005; and his removal from a leadership position on 20 June 2005, as the reasons for taking the separation action.  

8.  On 22 October 2005, the applicant acknowledged receipt of the separation notification and completed an election of rights.  In it, he acknowledged that before he completed the form he was afforded the opportunity to consult with counsel and he declined this opportunity.  He waived consideration of and personal appearance before an administrative separation board, and elected not to submit a statement in his own behalf.

9.  On 3 November 2005, appropriate authority approved the recommendation for discharge and directed that the applicant receive a general discharge (GD) under honorable conditions.

10.  On 14 December 2005, the applicant was discharged after completing 13 years, 8 months, and 5 days of active military service.  The DD Form 214 he was issued at the time confirms he was separated under the provisions of Paragraph 5-17, Army Regulation 635-200, by reason of "Condition, Not a Disability,” and the applicant authenticated this document with his signature in Item 21 (Signature of Member Being Separated) on the date of his discharge.  

11.  The applicant provides a VA rating decision, dated 21 December 2005, which shows he was granted service connection for PTSD with a 50% disability rating.  

12.  Army Regulation 635-200, paragraph 5-17, provides for the separation of Soldiers who have a physical or mental condition that potentially interferes with assignment to or performance of duty; however, the physical or mental condition does not amount to a disability or qualify for disability processing under the provisions of Army Regulation 635-40.

13.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-2b, 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.

14.  Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  An award of a VA 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 VA, 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 affects the individual's employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he was medically retired because the VA granted him a 50% disability rating for PTSD the day following his GD was carefully considered.  However, the evidence of record confirms that the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

2.  The evidence of record confirms that during the applicant’s separation processing he underwent a mental status evaluation, during which the examining psychiatrist determined the applicant suffered from no disabling mental or physical condition that would have warranted his processing through medical channels and that he met Army medical retention standards.  The Army has established standards and procedures for determining fitness for entrance and retention and utilized those procedures and standards in evaluating the applicant at the time of his discharge.  The specific diagnostic label given to an individual’s condition subsequent to discharge may change, but any change does not call into question the Army’s application of the existing fitness standards.

3.  The evidence also confirms the VA awarded the applicant a 50% disability rating for a PTSD condition.  However, while both the Army and the VA use the VA Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army.  


4.  The VA may rate any service connected impairment, thus compensating for loss of civilian employment.  It may also award 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.  It can also evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The assignment of a disability rating granted by the VA would not call into question the application of the fitness standards used by military medical authorities during the applicant’s separation processing.  As a result, absent any evidence that his condition was disabling at the time of his discharge processing, there is an insufficient evidentiary basis to support and upgrade of his discharge at this time. 

5.  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

__X____  ___X____  ___X____  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.




      _______ _   X_______   ___
               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)                                         AR20080009322



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ABCMR Record of Proceedings (cont)                                         AR20080009322



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