IN THE CASE OF:	  

		BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090010604 


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, correction of item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, that the reason for his discharge should be changed from "condition not a disability" to "disability retirement" based on the 
40 percent disability rating he received since his discharge for the service-connected conditions of a Traumatic Brain Injury (TBI) at 30 percent and Tinnitus at 10 percent. 

3.  The applicant provides a Department of Veterans Affairs (VA) letter, dated
28 January 2008 in support of his application. 

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's record shows he enlisted in the Regular Army (RA) and he entered active duty on 6 July 2004.  He was trained in and awarded military occupational specialty (MOS) 88M (Motor Transport Operator), and private first class (PFC)/E-3 is the highest rank/grade he attained while serving on active duty.

3.  On 5 December 2005, the applicant underwent a mental status evaluation at Womack Army Medical Center, Fort Bragg, NC.  The examining psychiatrist determined the applicant suffered from a cognitive disorder, not otherwise specified, and adjustment disorder with mixed disturbance of emotions and conduct.  He further determined the applicant had the mental capacity to participate in proceedings and he was mentally responsible and able to distinguish right from wrong.  He concluded the applicant's condition met the criteria set forth in paragraph 5-17 [Other designated physical or mental conditions], Army Regulation 635-200 [Personnel Separations - Active Duty Enlisted Administrative Separations], for an administrative separation.

4.  On 6 December 2005, the applicant was counseled regarding the recommendation that he be separated under the provisions of paragraph 5-17 of Army Regulation 635-200, for an other designated mental condition and that it was being recommended he be separated under these regulatory provisions and that he be provided an honorable discharge.  The applicant agreed with the counseling.

5.  On an unspecified date, the unit commander notified the applicant that he was initiating action to separate him for an other designated physical or mental condition under the provisions of paragraph 5-17 of Army Regulation 635-200, based on his diagnosed cognitive disorder and adjustment disorder with mixed disturbance of emotions and conduct.  He further informed the applicant he intended to recommend he receive an honorable discharge.

6.  On 15 December 2005, the applicant underwent a separation medical examination.  The DD Form 2808 (Report of Medical Examination) documenting this examination lists no disabling conditions that would have supported the applicant's separation/retirement processing through medical channels.  The examining physician determined the applicant was qualified for service.

7.  On 11 January 2006, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, its effects, of the 

rights available to him, and of the effect of any action he took to waive any of his 
rights.  Subsequent to this counseling, the applicant acknowledged his understanding that given he was not being considered for an under other than honorable conditions discharge and because he had less than 6 years of service, he was not entitled to have his case considered by an administrative separation board, and he elected not to submit statements in his own behalf.

8.  On 29 January 2006, the intermediate commander recommended approval of the applicant's separation under the provisions of paragraph 5-17 of Army Regulation 635-200, by reason of other designated physical or mental conditions and that he receive an HD.

9.  On 31 January 2006, a legal review of the applicant's separation packet was completed by an administrative law attorney, who found the packet legally sufficient under the provisions of paragraph 5-17 of Army Regulation 635-200.

10.  The applicant's record does not contain a copy of the approval authority's approval memorandum.  However, his records do contain a duly constituted DD Form 214 that shows he was accordingly discharged on 24 February 2006.

11.  The DD Form 214 issued to the applicant on the date of his discharge shows he was discharged, in the rank of PFC, after completing a total of 1 year,
7 months, and 19 days of active military service.  Item 25 (Separation Authority) confirms he was separated under the provisions of Army Regulation 635-200, paragraph 5-17, and item 28 (Narrative Reason for Separation) contains the entry "condition not a disability."

12.  The applicant provides a VA letter, dated 28 January 2008, which shows the applicant was granted a monthly entitlement of $348.00 on 1 December 2006, which was increased to $356.00 on 1 December 2007, and to $337.00 on 
1 March 2006 for residuals of closed head injury to include cognitive disorder and post concussive headaches (also claimed as post-traumatic stress disorder),    30 percent.  The letter for the justification of this decision is not available.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-17 contains the policy for separating members for other designated physical or mental conditions not amounting to disability.  It states, in pertinent part, that members may be separated under these provisions for disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 
and sets forth policies, responsibilities, and procedures that apply 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.  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.

15.  Chapter 3 of Army Regulation 635-40 contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, 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.  It further states 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.

16.  Title 38, U.S. 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 the reason for his separation listed in item 28 of his DD Form 214 should be changed to military retirement was carefully considered.  However, there is insufficient evidence to support this claim.


2.  By regulation, the mere presence of impairment does not, in and 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.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation, and it was based on the recommendation of a qualified psychiatrist.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

4.  Although the applicant provides a rating decision that shows he is entitled to monetary compensation for residuals of closed head injury to include cognitive disorder and post concussive headaches (also claimed as post-traumatic stress disorder), 30 percent, he fails to provide the accompanying letter of justification for this decision.  Further, his military record fails to show he suffered from a disabling condition at the time of his discharge that would have warranted his separation processing through medical channels.  His final medical examination confirms he was found medically qualified for service by the examining physician. Therefore, absent any evidence of record or independent evidence confirming the applicant suffered from a disabling physical or mental condition that warranted his separation processing through medical channels at the time of his discharge, there is an insufficient evidentiary basis to support granting the requested relief.

5.  The applicant is advised that 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/her 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 applied by military medical authorities at the time of his/her discharge.  As a result, the VA is the appropriate agency to provide further medical treatment and disability compensation for service-connected medical conditions that were not found permanently disabling at the time of his/her discharge/retirement.

6.  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)                                         AR20090010604



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010604



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1