IN THE CASE OF:	  

		BOARD DATE:	        16 JUNE 2009

		DOCKET NUMBER:  AR20080019125 


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, that the medical board proceedings that were pending be reinstated and that her narrative reason for separation be changed from personality disorder to a medical discharge.  

2.  The applicant states that she was administratively discharged for a personality disorder.  She contends that the Department of Veterans Affairs (VA) found no basis for a pervasive developmental disorder.

3.  The applicant provides the following documents in support of her application:

a.  DD Form 214 (Certificate of Release or Discharge from Active Duty);

b. Psychoeducational Evaluation, dated 20 June 2008;

c. DA Form 3947 (Medical Evaluation Board (MEB) Proceedings, dated 
12 October 2004;

d. Memorandum, subject: MEB, dated 4 October 2004;

e. Walter Reed Army Medical Center (WRAMC), Neurology Department 
Evaluation, dated 3 August 2004;

f. WRAMC Orthopedic Addendum, dated 9 August 2004;

g. Chronological Record of Medical Care, dated 13 September 2004;
h. Memorandum, subject: Addendum to Psychological Evaluation, dated 
13 September 2004;

i. Command-Directed Psychological Evaluation, dated 17 June 2004;

j. MEDCOM Form 4038 (Report of Behavioral Health Evaluation), dated 
17 June 2004;

k. Memorandum, subject: Psychiatric Evaluation of PFC ___________;

l. DA Form 3349 (Physical Profile), dated 25 August 2004;

m. DD Form 2807-1 (Report of Medical History), dated 4 August 2004;

n. Report of Medical Examination, dated 30 July 2004;

o. Memorandum, subject: Duty Performance of PFC ___________;

p. Statement from Unit Commander, dated 12 October 2004;

q. Enlisted Record Brief;

r. DA Form 2-1 (Personnel Qualification Record - Part II);

s. Defense Finance and Accounting Service (DFAS) Form 702 (Military 
Leave and Earnings Statement);

t. DA Form 705 (Army Physical Fitness Test Scorecard);

u. DA Form 5501-R (Body Fat Content Worksheet);

v. Personal Narrative;

w. Memorandum for Record, dated 5 November 2004;

x. MEDCOM Form 4038, dated 18 June 2004;

y. WRAMC Form Letter 14, dated 21 September 2004;

z.  Excerpts from Army Regulation 635-200 (Personnel Separations), 
chapters 1 and 5;

aa.  Letter from Psychologist, dated 29 September 2008; and
bb.  Four VA Rating Decisions.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel reviewed the applicant's records on 22 January 2009 and, in effect, concurred with the applicant's requests.

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 enlisted in the Regular Army, on 23 July 2002, for a period of four years.  At the completion of basic training and advanced individual training, the applicant was awarded military occupational specialty 91T (Animal Care Specialist).  Her highest grade attained was private first class, E-3.  

3.  On 17 June 2004, the applicant underwent a psychological evaluation.  The evaluation was ordered to assess the applicant's fitness for a field unit (Korea or other) and also fitness for her present position at Fort Detrick, MD.  The clinical psychologist stated that, since the applicant had required unending counseling, contravened numerous regulations and requirements, and had been unable to integrate into military life, her fitness was a real question.  The applicant showed certain basic impairments at a presumably neurological level.  The clinical psychologist further stated the applicant was not able to use further rehabilitative efforts or corrective counseling, they would continue to be ineffective.  It was also stated that the applicant's behaviors were likely to continue in the present form and intensity, regardless of constructive efforts the Army made on her behalf.  The applicant's psychodiagnostic impression was identified as pervasive developmental disorder not otherwise specified (atypical autism, high functioning) and oppositional, defiant, borderline, narcissistic personality traits - chronic.

4.  The applicant was placed on a permanent profile on 25 August 2004 for right wrist arthroscopy for triangula, vocal cord dysfunction, and fibrocartilage complex debridement of right wrist open ulnar shortening with a physical profile of  221111.  Her physical limitations were listed as "no pushups.  Running at own pace and distance.  Lifting to tolerance with upper extremity."  The unit commander commented that "I do not feel this Soldier can adequately perform her MOS with this permanent profile..." 

5.  On 13 September 2004, a clinical psychologist provided an addendum to the psychological evaluation, dated 17 June 2004.  He stated that there was no significant change in the applicant's mental state since the evaluation in June and the previous findings.

6.  On 7 October 2004, the applicant underwent a psychiatric evaluation.  She was diagnosed as having an adjustment disorder with mixed anxiety and depressed mood, resolved (Axis I) and pervasive developmental disorder not otherwise specified (atyptical autism, high functioning) (Axis II).  The psychiatrist stated that the applicant did not have a psychiatric condition that warranted disposition through medical or administrative channels and did not warrant a psychiatric addendum to the MEB.  

7.  In a memorandum, dated 8 October 2004, the unit commander stated that the applicant's performance had been fair to moderate and she spent a good deal of time involved in medical appointments.  The unit commander also stated that if the applicant was given simple administrative tasks, she could generally perform them.  In addition, the unit commander stated that the applicant could not adequately perform her duties due to her physical limitations and he had already started a Chapter 5-13 separation for the applicant.  

8.  The applicant was evaluated by an MEB on 12 October 2004.  The MEB proceedings indicated she did not present views in her own behalf.  She was diagnosed as having the following medical conditions:  (1) vocal cord dysfunction/upper airway resistance syndrome; (2) right wrist triangular fibrocartilage complex debridement; (3) right wrist open ulnar shortening; (4) migraines; and (5) Asperger's Disorder.  The MEB proceedings indicated the approximate date of origin of the Asperger's Disorder as June 2004; that the disorder was incurred while she was entitled to base pay; and that the disorder was permanently aggravated by service.  She was referred to a PEB.  

9.  In a 12 October 2004 statement, the unit commander indicated the applicant was pending elimination from the service under the provisions of the Uniform Code of Military Justice.

10.  On 28 October 2004, the findings and recommendations of the MEB were approved.  The applicant agreed with the board's findings and recommendation on 2 November 2004.  

11.  In a Memorandum for Record, dated 5 November 2004, a physician at the Barquist United States Army Health Clinic, Frederick, MD, stated that he had initiated an MEB on the applicant based on multiple medical issues that interfered with the completion of her duties and were exacerbated by a noted malingering tendency.  These required only P2 profiles.  The physician also stated the applicant was noted to qualify for administrative separation after the MEB initiation.  The physician suggested that the MEB be halted and the administrative chapter be done on behalf of the applicant's emotional well-being and the morale of her unit.  

12.  The applicant was discharged on 3 December 2004 under the provisions of Army Regulation 635-200, paragraph 5-13 by reason of personality disorder.  At the time of her discharge, she had completed 2 years, 4 months, and 11 days of active military service.  

13.  On 27 November 2006, the DVA increased the applicant's rating for migraine headaches to 30 percent.  Her initial DVA Rating Decision is not available.  Her service connection conditions of Post Traumatic Stress Disorder (PTSD) and residuals fracture right distal ulnar continued at a 10 percent disability rating.  Her condition of residuals fracture right distal ulnar was increased to a rating of 30 percent diabling, effective 21 February 2007.  

14.  The DVA Rating Decision, dated, 4 June 2007, shows the applicant was awarded service connection with a combined disability rating of 60 percent 
(21 February 2007) for migraine headaches (30 percent); residuals fracture right distal ulnar (30 percent); residual scar right wrist status post triangular fribro cartilage debridement (10 percent); PTSD (10 percent); dry eye syndrome (zero percent); and iron deficiency (zero percent).  On 26 July 2008, the DVA rating of residuals fracture right distal ulnar was decreased to zero percent.

15.  The DVA Rating Decision, dated 20 October 2008, shows the applicant's rating for residuals fracture right distal ulnar was decreased from a rating of 
30 percent to 10 percent disabling.  

16.  In the processing of this case, a staff advisory opinion was obtained from the United States Army Physical Disability Agency (USAPDA).  This office stated, in effect, that a review of the available evidence does not indicate any injustice or 


reversible administrative error.  The opinion referenced the applicant's psychological and psychiatric evaluations completed in June 2004 and October 2004.  The psychologist diagnosed the applicant with a "Pervasive Developmental Disorder not otherwise specified (Atypical, High Functioning)."  The psychiatrist affirmed the diagnosis and confirmed that the applicant had no psychiatric conditions that did not meet medical retention standards.  

17.  The advisory opinion also referenced the 12 October 2004 MEB proceedings.  On 5 November 2004, the MEB physician reevaluated the MEB findings and indicated the applicant's physical problems only warranted a 
"2" in the limitations of duty listed on the physical profile and that it appeared her developmental disorder/malingering were the main problems with her ability to function in the unit.  Accordingly, the physician suggested that the MEB be halted and the administrative separation action, which had already been started before the MEB, be processed.  The advisory opinion pointed out that much of the applicant's inability to perform her duties was related to non-physical problems and attitude based on all the factors in her case.  It was stated that the Physical Evaluation Board (PEB) would have found the preponderance of the evidence supported a finding of fit for duty.  Had such a finding been rendered, the MEB would have been returned to the applicant's unit for any action deemed appropriate in accordance with Chapter 5, Army Regulation
635-200.

18.  A copy of the advisory opinion was forwarded to the applicant; however, she did not respond within the allotted timeframe.  

19.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-13 provides that a Soldier may be separated for personality disorder, not amounting to disability under Army Regulation 635-40, that interferes with assignment to or performance of duty.  The regulation requires that the condition is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier’s ability to perform duty.  The regulation also directs that commanders will not take action prescribed in this chapter in lieu of disciplinary action, requires that the diagnosis concludes the disorder is so severe that the Soldier’s ability to function in the military environment is insignificantly impaired.

20.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his/her office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty.

21.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): 
P-physical capacity or stamina, U-upper extremities, L-lower extremities,           H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

22.  Title 38, U. S. 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.  The VA, however, is not required by law to determine medical unfitness for further military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the VA found no basis for a pervasive developmental disorder.

2.  It is noted the applicant applied to the VA for service connection compensation and was awarded a combined disability rating of 60 percent for migraine headaches, residuals fracture right distal ulnar, residual scar right wrist status post triangular fribro cartilage debridement, PTSD, dry eye syndrome, and iron deficiency.  

3.  However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered 


medically unfitting for military service at that time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  

4.  The evidence of record shows that prior to her December 2004 discharge, competent medical authority (psychologist and psychiatrist) determined that the applicant had a pervasive developmental disorder not otherwise specified (atypical, high functioning).  

5.  It is acknowledged the applicant's unit commander had initiated administrative separation actions under Army Regulation 635-300, paragraph 5-13 prior to the MEB.  The applicant was then evaluated by a MEB, on 12 October 2004.  She was diagnosed as having vocal cord dysfunction/upper airway resistance syndrome, right wrist triangular fibrocartilage complex debridement, right wrist open ulnar shortening, migraines, and Asperger's Disorder and was referred to a PEB.  

6.  As stated in the advisory opinion from the PDA, the MEB physician reevaluated the MEB findings and indicated that the applicant's physical problems only warranted a "2" in the limitations of duty listed on the physical profile and that it appeared her developmental disorder and malingering were the main problems with her ability to function in the unit.  The MEB proceedings were suspended as the applicant’s condition did not render her medically unfit.  

7.  Based on the overall evidence of record, it appears that there is no error or injustice that exists in this case.  Therefore, there is no basis for reinstating the medical board proceedings or changing the applicant's narrative reason for separation from personality disorder to a medical discharge. 

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)                                         AR20080019125



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ABCMR Record of Proceedings (cont)                                         AR20080019125



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