IN THE CASE OF:	  

		BOARD DATE:	        7 April 2009

		DOCKET NUMBER:  AR20080019268 


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 discharge and/or an honorable discharge.  He also requests that his narrative reason for separation be changed.

2.  The applicant states, in effect, that he was discharged because he was beaten up and hospitalized with stitches in his head.  He contends that he has been receiving disability benefits since his discharge, that he has been hospitalized numerous times since his discharge for his mental condition, and that he has been told that he will be on medication for the rest of his life.  He also states that his narrative reason for separation should be changed to "full disability due to physical and mental condition." 

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); a letter, dated 
4 November 2008, from his out-patient therapist; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 2 November 2005. 

2.  On 14 December 2005, the applicant underwent a behavioral health evaluation and was diagnosed with an adjustment disorder with a depressive mood and post-concussive syndrome by a Ph.D. level psychologist. 

3.  On 6 January 2006, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 
5-17, for other designated physical or mental conditions.  The commander cited that the applicant had been diagnosed with an adjustment disorder with a depressive mood and post-concussive syndrome.  He stated that the applicant's disorder affected his emotional control, behavior, and his ability to effectively perform his military duties, which might cause him to most likely harm himself or others, thus preventing him from being a productive member in the Army.  The separation authority approved the recommendation for separation and directed that the applicant receive an entry level uncharacterized discharge.  On
12 January 2006, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of physical condition, not a disability.  His character of service was uncharacterized.

4.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, PARA [paragraph] 5-17."  Item 
26 (Separation Code) on this DD Form 214 shows the entry, "JFV."   Item 
28 (Narrative Reason for Separation) on this DD Form 214 shows the entry, "CONDITION, NOT A DISABILITY."

5.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 5 provides for separation for the convenience of the Government.  Paragraph 5-17 of this regulation provides for discharge for other designated physical or mental conditions.  Commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and excluding conditions appropriate for separation processing under paragraph 5-11 (separation of personnel who did not meet procurement medical fitness standards) or 
5-13 (separation because of personality disorder) that potentially interfere with assignment to or performance of duty.  A Soldier separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in an entry level status.  

6.  Paragraph 3-36 (Adjustment Disorders) of Army Regulation 40-501 (Standards of Medical Fitness) states that situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.

7.  Army Regulation 40-501 does not list post-concussive syndrome as a cause for referral to a medical evaluation board.

8.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

9.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

10.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for separation based on separation code "JFV" is a "Condition, Not a Disability" and the regulatory authority is Army Regulation 635-200, paragraph 
5-17.   

11.  Title 38, U.S. Code, sections 310 and 331, permits the Department of Veterans Affairs (DVA) to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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 the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was diagnosed with an adjustment disorder with a depressive mood and post-concussive syndrome by competent and appropriate military medical authorities.  The governing regulation states that adjustment 


disorders/situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.  In addition, post-concussive syndrome is not listed in the governing regulation as a cause for referral to a medical evaluation board.  Therefore, it appears there is insufficient evidence to show the applicant was eligible for physical disability processing.  Therefore, there is no basis for a medical discharge.

2.  An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  As a result, there is no basis for granting the applicant's request for an honorable discharge.

3.  The narrative reason for separation used in the applicant’s case is correct and was applied in accordance with the applicable regulations. 

4.  The applicant 's contention that he has been receiving disability benefits since his discharge was noted.  However, a rating action by the DVA does not necessarily demonstrate an error or injustice on the part of the Army.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Consequently, due to the two concepts involved, an individual’s medical condition may not be considered to be a physical disability by the Army and yet be rated by the DVA as a disability. 

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)                                         AR20080019268



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ABCMR Record of Proceedings (cont)                                         AR20080019268



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