IN THE CASE OF:	  

		BOARD DATE:	  2 April 2009 

		DOCKET NUMBER:  AR20080017054 


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 his request that his record be corrected to show he was medically discharged instead of being separated by reason of expiration of term of service (ETS).

2.  The applicant states, in effect, that while serving as a noncommissioned officer on active duty, he was not authorized to seek mental health care.  He claims the Army did not care about the mental health of Soldiers and as a result, he had to seek care on his own.  He claims that the military psychiatrists knew he suffered from anxiety and depression; however, he was never provided mental health care.

3.  The applicant provides the following documents in support of his application:  self-authored statement; Statement in Support of Claim (VA Form 21-4138); Department of Veterans Affairs (VA) letters, dated 8 January 2008 and 15 February 2008; mental health treatment progress notes; VA rating decision; and Army Board for Correction of Military Records Board (ABCMR) Record of Proceedings.

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 ABCMR in Docket Number AR20070016988 on 15 April 2008.

2.  In support of his reconsideration request, the applicant provides VA mental health progress notes which indicate he has been under care for a military- related post-traumatic stress disorder since 1989.  This is new evidence that will be considered by the Board.

3.  During its original review of this case, the Board found that the applicant's official military personnel file was void of any documents or medical treatment records that confirmed the applicant suffered from a physically disabling condition that rendered him unfit to perform his military duties, or that would have warranted his processing through the Army’s Physical Disability Evaluation System (PDES) at the time of his discharge.

4.  The applicant’s record shows he enlisted in the Regular Army on 13 April 1976.  He was trained in and awarded military occupational specialty (MOS) 31K (Combat Signaler) and MOS 05B (Radio Operator).  It further shows that sergeant is the highest rank he attained while serving on active duty.

5.  The applicant's record contains a Standard Form (SF) 88 (Report of Medical Examination), dated 13 April 1976, which was prepared on the applicant in conjunction with his enlistment processing.  Item 73 (Notes) of this document confirms the applicant had no qualifying defects or communicable diseases.  Upon completion of the entrance physical examination process, the applicant was assigned a PULHES of 111121 and was found fit and qualified for entrance into the military.

6.  The applicant's record also contains consultation sheets and emergency care and treatment records for the period 6 June 1983 through 17 August 1983, which show the applicant requested counseling from the mental hygiene clinic for his stressful situations and emotional distress he suffered as a result of his wife and children leaving him.  The record is void of any medical treatment records that show he suffered from a disabling medical or mental condition that rendered him unfit for further service at the time of his separation processing.

7.  The available records contain DA Forms 2166-6 (Enlisted Evaluation Report) (EER) for the periods from April 1979 to May 1984, that show the applicant was rated as 5 (highest score on a scale of 5 to 0) in all categories under Professional Competence, including “Performs under pressure.”  The applicant was rated as 
5 in all categories under Professional Standards except “Self discipline” where he was rated 4.  The recommendations were “Promote with peers.” 

8.  On 4 December 1984, the applicant requested to be placed on Terminal Leave from 28 January 1985 to 11 March 1985 in conjunction with his separation from active duty.
9.  On 11 March 1985, the applicant was honorably discharged from active duty.  The DD Form 214 he was issued at the time shows he separated under the provisions of chapter 4, Army Regulation 635-200 (Personnel Separations), by reason of ETS after completing a total of 6 years and 3 months of active military service.

10.  The applicant provides a VA rating decision, dated 21 October 2008, which shows he was granted service connection for a bipolar disorder with a combined rating of 60 percent disability effective 1 May 2003.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) then in effect, established the Army PDES and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 3 provides guidance on presumptions of fitness and specifies that the mere presence of 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, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

12.  Title 38, United States Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards 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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have received a medical discharge and the documents he provided in support of his request were carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, the mere presence of 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, grade, rank, or rating.

3.  There is no evidence of record that shows the applicant suffered from a mentally or physically disabling condition that would have supported his processing through the PDES at the time of his discharge.  Further, the medical evidence now submitted by the applicant is the result of subsequent VA evaluations that are based on his current medical condition.  The VA evaluations do not provide any compelling evidence that the condition(s) for which the applicant is now receiving VA care and compensation rendered him unfit for further service at the time of his discharge.  As his EERs show, he was capable of performing his duties even after his being seen in the mental hygiene clinic in 1983.  As a result, there is still an insufficient evidentiary basis to support granting the requested relief.

4.  The applicant is advised that a VA diagnosis or rating award does not establish entitlement to a medical discharge/retirement.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  In this case, it is assumed that the applicant is being properly evaluated and treated for his service-connected medical conditions by the VA.  However, a VA diagnosis at this late date does not call into question the medical findings and determinations properly rendered by appropriate military medical officials at the time of his separation processing.

5.  As the applicant was informed in the original Board decisional document, 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 any new evidence or argument that would satisfy this requirement or that would support amendment of the original Board decision in this case.

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 AR20070016988, dated 15 April 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)                                         AR20080017054



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ABCMR Record of Proceedings (cont)                                         AR20080017054



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