IN THE CASE OF:	

		BOARD DATE:	  6 January 2009

		DOCKET NUMBER:  AR20080015603 


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, reconsideration of the Board’s denial of her request to change her discharge to a physical disability retirement.

2.  The applicant states that the new documents she submitted are relevant to the initial application and her explanations of each document are truthful testimonies.

3.  The applicant provides a copy a Mental Status Evaluation; a Patient Referral form; a letter from a Clinical Social Worker; a physician's statement, a Memorandum from a Mental Healthcare Provider; an extract of Department of Defense Directive 6490.1, dated 1 October 1997; a letter from Orthopedic Surgery Sports Medicine; a diagnosis of Rheumatoid Arthritis; two DA Forms 3349 (Physical Profile); an extract of Army Regulation 40-501 (Standards of Medical Fitness); two DA Forms 31 (Request and Authority for Leave); a DA Form 137-1 (Unit Clearance Record); an Affidavit, dated 15 September 2006; a DA Form 2166-8 (NCO Evaluation Report); an Affidavit and Memorandum, dated 29 September 2006; two DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)); a DA Form 3881 (Rights Warning Procedure/Waiver Certificate); a DA Form 458 (Charge Sheet); separation orders with amendments; a request for the applicant to be retain on active duty pending UCMJ; two email messages; and her DD Form 214 (Certificate of Release or Discharge from Active Duty).



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080004157, on 1 July 2008.

2.  In the original decision the ABCMR found the applicant's performance of duty created the presumption of fitness which she had not overcome by the evidence she presented.

3.  The applicant has provided new evidence which requires that her case be reconsidered by the ABCMR.

4.  The letter from the clinical social worker dated 10 December 2004 that the applicant submitted states that the applicant had received psychotherapy since 13 April 2004 and that she was diagnosed with major depressive disorder, recurrent, moderate to severe.  The applicant was referred to a primary care physician, who suggested that she consult with a psychiatrist.

5.  A note from a primary care physician dated 16 August 2005 states that due to the applicant's health condition, it was advised that the applicant be off from work for the rest of the week because she was suffering from stress and anxiety relating to her job.

6.  The mental status evaluation dated 9 September 2005 that the applicant submitted states that the applicant was referred by her commander for a mental status examination for fitness for duty.  The applicant was psychiatrically cleared for any administrative action deemed appropriate by her command.  The recommendation to the commander states that the applicant should return to her duties without limitations.

7.  The memorandum from the mental healthcare provider dated 13 March  
2006 that the applicant submitted states that the applicant was not functioning effectively as a Recruiter and despite medication and psychotherapy, her mood, behavior and productivity had not improved.  The applicant's ability to cope effectively with stress was rather poor, which made her ill suited for any branch  of the military.  The clinician (a licensed clinical psychologist) recommended   that the applicant be separated under the provisions of Army Regulation        635-200 (Personnel Separation), chapter 5-17 (other physical or psychological condition).  The applicant's depression was not of sufficient severity to warrant her separation by a medical board.

8.  On 22 June 2006, the applicant was diagnosed as having probable evolving rheumatoid arthritis and was prescribed medication of naproxen and vicodin.

9.  The DA Forms 3349 that the applicant submitted shows she received a temporary profile on 27 June 2006 for rheumatoid arthritis for 90 days.  On  
11 August 2006, the applicant was given a permanent profile for the same condition.

10.  The DA Forms 31 that the applicant submitted show that the applicant requested ordinary leave from 17 August 2006 to 5 October 2006.  She requested transitional leave from 7 October 2006 to 5 November 2006 because she was scheduled for separation on 5 November 2006.

11.  In the two affidavits dated 15 September 2006 and 29 September 2006, the chief of patient administration at the local Army medical activity had requested the applicant's retention beyond her expiration of term of service for the completion of hospital care and or/physical disability evaluation under the provisions of chapter 61, Title 10, U. S. Code.

12.  The two email messages the applicant submitted pertain to a conversation between the applicant's Recruiting Battalion S-1, Brigade Judge Advocate, and a Headquarters, 5th Recruiting Brigade, Paralegal Specialist.

13.  The DA Form 3881 dated 5 October 2006 shows that the applicant was being investigated for presenting fraudulent documents to the Fort Polk, Louisiana Transition Point.  In the nonwaiver section of this form the applicant checked that she elected to see a lawyer.

14.  On 19 October 2006, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for making false official documents with intent to deceive.  This document shows that the applicant demanded trial by court-martial. 

15.  A memorandum dated 31 October 2006 shows that the applicant's commander requested that the applicant be retained beyond her expiration of term of service for 30 days because the applicant was pending UCMJ and had demanded trial by court-martial.  The requested retention date was 5 December 2006.

16.  On 7 November 2006, charges were preferred against the applicant for making false official documents with intent to deceive, to wit:  Commander's Performance Statement and the Medical Retention of Service Member Beyond Expiration of Term of Service documents.
17.  On 20 November 2006, the applicant accepted NJP under the provisions of Article 15, UCMJ for making false official documents with intent to deceive, to wit:  Commander's Performance Statement and the Medical Retention of Service Member Beyond Expiration of Term of Service documents.  The applicant did not demand trial by court-martial nor did she submit an appeal.

18.  The applicant's records do not contain any referral for a medical evaluation board (MEBD) and physical evaluation board (PEB).

19.  On 5 December 2006, the applicant was honorably discharged from active duty under the provisions of Army Regulation 635-200, chapter 4 for completion of required active service.  She completed 4 years, 8 months, and 25 days of active service during that period of active duty.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), then in effect, provided that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEBD.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

21.  Army Regulation 635-40 states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individual’s performance, and requirements which may be imposed on the Army to maintain and protect him during future duty assignments.  All relevant evidence must be considered in evaluating the fitness of a member.  When a member is referred for physical evaluation, evaluations of his performance of duty by his supervisors may provide better evidence than a clinical estimate by a physician of the member’s physical ability to perform the duties of his office, grade, rank, or rating until the time he was referred for physical evaluation.  Thus, if evidence establishes that the member adequately performed the normal duties of his office, grade, rank or rating until the time he was referred for physical evaluation, he might be considered fit for duty, even though medical evidence indicates his physical ability to perform such duties may be questionable.



22.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 4 of that regulation provides, in pertinent part, for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training.  A Soldier separated upon 
expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the Soldier is in entry level status and service is uncharacterized.

23.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, that is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests reconsideration of the Board's denial to change her discharge to physical disability retirement.

2.  The new evidence that the applicant submitted does not show that an error or injustice occurred in her case.

3.  Since there is no evidence or indication that the applicant had a condition which was medically disqualifying for retention, her physical condition would not have warranted consideration by a MEBD.  Without an MEBD, 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 retired for physical unfitness.

4.  While the applicant was diagnosed with major depressive disorder, that condition was said not to be medically disqualifying.  Although the applicant may not agree with that finding, she has not submitted any evidence to show that finding was wrong.

5.  A presumption of regularity must be applied, that what the Army did was correct.  It is up to the applicant to prove otherwise.  The new evidence that the applicant submitted does not overcome the presumption of regularity.  Therefore, she is not entitled to change her discharge to physical disability retirement.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080004157, dated 1 July 2008.



      __________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)                                         AR20080015603



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ABCMR Record of Proceedings (cont)                                         AR20080015603



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