IN THE CASE OF:	  

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090014447 


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 her military records and medical records be reviewed and she be awarded a medical discharge with a pension.  In effect, she requests medical retirement.

2.  The applicant states that she was honorably released from active duty by reason of completion of her required active service.  She also states that she served her country honorably and was awarded the Combat Action Badge and the Bronze Star Medal.  She has suffered from post-traumatic stress disorder (PTSD) from the war in Iraq and was initially treated in theater in 2005.  Her command knew that she suffered from this condition.  She was also enrolled in a daily treatment program during her active duty period for this condition.  She adds that her medical evaluation board (MEBD) recommended her discharge in accordance with Army Regulation 135-178 (Enlisted Administrative Separations) as listed on her DD Form 214 (Certificate of Release or Discharge from Active Duty), which is for medical reasons, and that the orders she received from the Army and National Guard Regulations are also for medical reasons.  She was harassed and discriminated against by her command to an extent that she requested to be released from her Active Guard Reserve (AGR) tour in February 2008.  She concludes that she currently has a disability rating from the Department of Veterans Affairs (VA) and has lost three civilian jobs since her discharge from the Army due to her disability.

3.  The applicant provides copies of her DD Form 214, dated 11 February 2008; a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 16 May 2008; a Report of Mental Status Evaluation, dated 13 February 2008; Orders 137-028, issued by the Connecticut Army National Guard (CTARNG), dated 16 May 2008; a DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the period 3 October 2006 through 2 October 2007; a Standard Form 600 (Chronological Record of Medical Care), dated 7 May 2006; Orders 303-048, issued by the CTARNG, dated 30 October 2006; a DA Form 1059 (Service School Academic Evaluation Report), dated 27 January 2007; a DA Form 4856 (Development Counseling Form), dated 21 March 2008; an extract of Army Regulation 135-178; a VA outpatient treatment program letter, dated 22 June 2007; a PTSD clinical letter, dated 9 June 2008; a narrative recommendation for award of the Bronze Star Medal; an NGB Form 23A (Army National Guard Current Annual Statement), dated 12 March 2008; her undated/unsigned letter of resignation from the AGR program; a CTARNG memorandum requesting her medical records, dated 26 September 2007; a DA Form 3349 (Physical Profile), dated 14 May 2005; a memorandum referring her to the Combat Stress Control program in Iraq, dated 18 October 2004; VA radiology reports, laboratory results, consult requests, progress notes, and other medically-related documents, dated in 2006, 2007, and 2008; and a voluminous record of personal electronic mail (email) messages with various military individuals, dated in 2006, 2007, and 2008, in support of her request.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests, in effect, the applicant be awarded a medical retirement.

2.  Counsel states that as a designated representative, she requests to be appropriately informed of all actions taken in this case.

3.  Counsel did not submit any additional documentary evidence in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she enlisted in the U.S. Army Reserve (USAR) on 5 February 1998.  She subsequently entered active duty for training (ADT) and completed basic combat and advanced individual training.  She was awarded military occupational specialty 88M (Motor Transport Operator).  She was released from ADT to the control of her USAR unit on 16 October 1998.

2.  The applicant's records also show she was ordered to active duty as a member of her Reserve unit on 9 February 2003 and subsequently served in Iraq from 16 February 2004 to 28 February 2005.
3.  On 9 June 2006, the applicant's chain of command referred her to the Newington VA Mental Health Clinic, Newington, CT, for PTSD screening due to outbursts of anger, which at one time resulted in her punching the wall.

4.  She was honorably released from active duty on 2 October 2006.

5.  On 3 October 2006, the applicant executed a 3-year enlistment in the CTARNG.  She was subsequently ordered to active duty in Full Time National Guard Duty (FTNGD) in an AGR status on 25 October 2006 for a period of 3 years and was assigned to Company G, 126th Aviation, Windsor Locks, CT.

6.  On 27 January 2007, the applicant was released from Phase I of the Basic NCO Course at Niantic, CT.  The DA Form 1059 she was issued shows she was released for medical reasons.  She experienced a "flare up" of her back problems which prevented her from completing the course.

7.  On 27 June 2007, the applicant reentered the Intensive Outpatient Treatment Program for treatment of PTSD.  She was scheduled for group therapy at the rate of 3 days per week.

8.  On 26 September 2007, the CTARNG State Surgeon directed the applicant by memorandum to follow up with her physician with regard to her PTSD and pregnancy complications.  She was also directed to submit copies of her medical records, specifically, her medical diagnosis, prognosis, limitations, and effect on continued military service and mobilization.  However, there is no indication that she responded and/or provided the required documents.

9.  During the month of October 2007, the applicant received an annual NCOER for the period from 3 October 2006 through 2 October 2007.  Her rater and senior rater indicated in all parts of this form that neither rating official was able to rate and/or senior rate her due to a medical condition.  There is no indication in her records of the specific medical condition(s) that hindered them from rendering an evaluation.

10.  On an unknown date, presumably in January 2008, the applicant requested resignation from the AGR program by letter.

11.  On 30 January 2008, the Chief of Staff, CTARNG, notified the applicant by memorandum that her request to resign from the AGR program was approved.

12.  The applicant was honorably released from active duty to the control of her ARNG unit on 11 February 2008.  The DD Form 214 she was issued shows she was released from active duty under the provisions of Army Regulation 135-178 by reason of completion of her required active service.  This form also shows she completed 1 year, 3 months, and 17 days of creditable active service.

13.  On 13 February 2008, the applicant was command-referred to Keller Army Community Hospital, West Point, NY.  She had been diagnosed with PTSD and received counseling for this condition at the VA; however, she continued to have difficulty performing her full-time duties and had been unable to attend drills.  The clinical psychologist indicated that she was diagnosed with PTSD since 2005, her treatment was sporadic at the VA, and that she was unable to take medications due to her pregnancy.  In June 2007, her back pain was aggravated by her pregnancy.  Her physician at the time recommended rest; however, she continued to have stressors caused by a difficult pregnancy, child birth, marital discord, and financial problems which aggravated her functioning.  Her chain of command stated that she had not attended drills since she was assigned to the unit over a year before and information regarding her health was produced by her only after numerous requests were made.  She had difficulty following through with requests made by her chain of command and she had multiple and frequent interpersonal problems with authority figures.  She tends to be argumentative, impulsive, judgmental, and mistrustful of others.  She had a rigid way of thinking and often took a self-righteous attitude.  She had a deep sense of insecurity and fear which she attempted to hide by being overly harsh and controlling of others. 
Due to her personality disorder, she was likely to have continued difficulty in her interaction with others, which in a military situation would have put her or others in danger.  The clinical psychologist recommended her separation under the provisions of paragraph 6-7 of Army Regulation 135-178.

14.  On 16 May 2008, the CTARNG published Orders 137-028 directing the applicant's honorable discharge from the ARNG effective 16 May 2008 in accordance with paragraph 8-35(l)(8) of National Guard Regulation 600-200 (Enlisted Personnel Management).

15.  On 16 May 2008, the applicant was honorably discharged from the ARNG in accordance of paragraph 8-35(1)8 of National Guard Regulation 600-200 and Army Regulation 135-178.  The NGB Form 22 she was issued shows he had completed a total of 7 years of active and inactive service toward retirement.

16.  The applicant submitted copies of her VA radiology reports, laboratory results, consult requests, progress notes, and other medically-related documents, dated in 2006, 2007, and 2008, which show that she was seen on several occasions at the VA clinic for various illnesses, including multiple cysts on her scalp, left shoulder pain, audio evaluation, acne to the cheek, neurological testing, wax blockage, irritability and outbursts of anger, and PTSD.

17.  The applicant also submitted a voluminous exchange of email messages with various military personnel/officials regarding her dissatisfaction with her unit and her resignation from the AGR program.

18.  There is no indication in the applicant's records that she was considered by an MEBD.

19.  Army Regulation 135-178 sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of ARNG and USAR enlisted Soldiers for a variety of reasons.  Paragraph 6-7 provides for separation for other designated or mental conditions and states, in pertinent part, that the separation authority may approve discharge 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) that potentially interfere with assignment to or performance of military duty.  Such conditions may include, but are not limited to, chronic airsickness or seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, personality disorder, and other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to perform military duties effectively is significantly impaired.  In cases of personality disorder, the diagnosis must be made by a psychiatrist or doctoral level clinical psychologist with the necessary and appropriate professional credentials who is privileged to conduct mental health evaluations for Department of Defense components.  This condition is a deeply-ingrained, maladaptive pattern of behavior of long duration which interferes with the Soldier's ability to perform his or her duty.  Exceptions are combat exhaustion and other acute situational maladjustment.  Separation on the basis of personality disorder is authorized only if the diagnosis concludes that the disorder is so severe that the Soldier's ability to function effectively in the military environment is significantly impaired.

20.  National Guard Regulation 600-200 provides for management of enlisted personnel.  Chapter 8 of this regulation sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG.  It states, in pertinent part, that the separation of a Soldier from the ARNG is a function of State military authorities in accordance with State laws and regulations.  Paragraph 8-35 of National Guard Regulation 600-200 provides for the reasons for separation/discharge from the ARNG.  Paragraph 8-35l(8) specifies that State ARNG and/or Reserve of the Army USAR Soldiers will be separated for being medically unfit for retention per Army Regulation 40-501 (Standards of Medical Fitness).  Commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501.  If the Soldier refuses to report as directed, see paragraph 8-36u below.  Commanders who do not recommend retention will request the Soldier's discharge.  When the medical condition was incurred in the line of duty, the procedures of applicable National Guard Regulations will apply.  Discharge will not be ordered while the case is pending final disposition.

21.  Paragraph 8-36u lists reasons for separation from the State ARNG not listed in paragraph 8-35 of National Guard Regulation 600-200 or Army Regulation 
135-178.  All involuntary administrative separations require commanders to notify Soldiers concerning intent to initiate separation procedures per paragraph 8-32.  All Soldiers being involuntarily separated will be afforded a reasonable opportunity to provide a written response for consideration by the separation authority.  Characterization of service will be per applicable State codes.

22.  Army Regulation 40-501, chapter 3, provides for the separation of an individual found to be unfit by reason of physical disability.  He or she must be unable to perform the duties of his or her office, grade, rank, or rating.  Members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty and are referred for disability processing.

23.  Army Regulation 635-40 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.  It provides for MEBDs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

24.  Army Regulation 635-40, paragraph 3-1, provides 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

25.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities. 
Department of Defense Instruction 1332.39 and Army Regulation 635-40, appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

26.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her records should be reviewed for a medical retirement.

2.  The evidence of record shows the applicant was ordered to active duty in an AGR status on 3 October 2006.  However, she submitted a letter requesting resignation from this program.  Accordingly, she was honorably released from active duty on 11 February 2008 by reason of completion of her required active service.  She subsequently underwent a mental evaluation and was diagnosed with PTSD and a mental disorder.  The clinical psychologist recommended her discharge under the provisions of Army Regulation 135-178 by reason of a personality disorder.

3.  The evidence of record also shows that the applicant was previously instructed in writing by the CTARNG to submit her treatment records to include any diagnosis, prognosis, limitations, and other documents for a determination of her fitness for duty.  There is no indication that she did so.  She was ultimately discharged from the ARNG by reason of a personality disorder.

4.  The applicant now believes she should receive a medical retirement and contends that an MEBD recommended her medical discharge; however, she did not provide a copy of the MEBD proceedings.  She submits copies of her VA radiology reports, laboratory results, consult requests, progress notes, and other medical documents, dated in 2006, 2007, and 2008, which show that she was seen on several occasions at the VA clinic for various illnesses, including multiple cysts on her scalp, left shoulder pain, audio evaluation, acne to the cheek, neurological testing, wax blockage, irritability and outbursts of anger, and PTSD. 
However, it is unclear if and which condition or conditions rendered her unfit to perform the duties of her grade and specialty.

5.  The evidence of record confirms the applicant was discharged in accordance with National Guard Regulation 600-200 and Army Regulation 135-178 by reason of a personality disorder, a medical condition - not a disability.  Absent this condition, there was no fundamental reason to process the applicant for discharge.

6.  There is insufficient evidence in the applicant's records that shows she had a medical condition(s), illness(e)s, or injury(ies) that was diagnosed during a medical examination, was determined not to have met the medical retention standards of Army Regulation 40-501, and warranted her entry into the PDES.  Accordingly, an MEBD never convened to document her medical status and duty limitations for possible referral to a PEB.  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 separated/retired for physical disability.

7.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not provide sufficient evidence that would satisfy this requirement.  Therefore, she is not entitled to relief.

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)                                         AR20090014447



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ABCMR Record of Proceedings (cont)                                         AR20090014447



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