IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20090017676 


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 correction of item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) from "Condition, Not a Disability" to "Medical Condition or Discharge." 

2.  The applicant states he never went before a medical board and he was not determined to have had a medical condition.  He is unable to prove he no longer has such a condition as none is listed on his DD Form 214 or medical records.  

3.  The applicant indicated he submitted a copy of his DD Form 214, letters from friends and family, and a copy of his medical records; but none was enclosed with his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of 3 years and 16 weeks on 3 May 2006 and held military occupational specialty 21B (Combat Engineer).  He was assigned to B Company, 70th Engineer Battalion, Fort Riley, KS.

2.  The applicant's records also show he was awarded the Army Service Ribbon, Global War on Terrorism Service Medal, and National Defense Service Medal.



3.  His records reveal he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice as follows:

* On 4 October 2006, for failing to go to his appointed place of duty at the time prescribed
* On 28 February 2007, for masturbating on another Soldier, disobeying a lawful order, being disrespectful towards a superior noncommissioned officer (NCO), and willfully damaging military property

4.  His records also reveal an extensive history of negative counseling by several members of his chain of command for various infractions including failure to be at his appointed place of duty, failure to report, failure to keep accountability of his basic issue, failure to keep the billet and orderly rooms clean, being disrespectful towards an NCO, destroying government property, failure to show discipline in safely handling his weapon, lack of motivation, failure to stay in the proper uniform, an improper relationship with a 13-year old girl, failure to discontinue harassment of a 13-year old girl and her family, being absent without leave, disobeying a superior commissioned officer, and failure to obey regulations.

5.  On 27 February 2007, subsequent to an alarming pattern of indiscipline, he was referred to Community Mental Health Services at Irwin Army Community Hospital, Fort Riley, KS, for a mental evaluation.  The evaluation revealed his behavior was normal, he was fully oriented, his mood was depressed, his thinking process was clear, his thought content was normal, and his memory was fair.  He had the mental capacity to understand and participate in administrative proceedings and he was mentally responsible.  His diagnosis was as follows:

* Axis I: Adjustment Reaction Disorder with depressed mood
* Axis II: Deferred
* Axis III: None

6.  The licensed psychologist indicated that the above noted diagnosis met the criteria for separation from the Army as the applicant was deemed unsuitable for continued military service on the basis of the above diagnosis.  He was aware that the diagnosis met the criteria for an administrative separation under the provisions of chapter 5-17 of Army Regulation 635-200 (Personnel Separations).  





7.  On 3 April 2007, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of paragraph 5-17 of Army Regulation 635-200 by reason of other physical and/or mental medical conditions not amounting to a disability.  Specifically, he had an adjustment reaction disorder with depressed mood.  

8.  On 5 April 2007, he acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation action and its effect; of the rights available to him and the effect of any action taken by him in waiving his rights; and the type of discharge and its effect on further enlistment or reenlistment.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He further elected not to submit a statement on his own behalf.

9.  On 5 April 2007, his immediate commander initiated separation action against him in accordance with paragraph 5-17 of Army Regulation 635-200 for other designated physical and/or mental conditions.  The immediate commander indicated the applicant had difficulty adjusting to the demands of the Army and was not ready for deployment or able to cope with the demands of the Army.

10.  On 11 April 2007, his intermediate commander recommended approval of the recommendation for separation with the issuance of an honorable character of service.

11.  On 12 April 2007, the separation authority approved the proposed separation action in accordance with paragraph 5-17 of Army Regulation 635-200 and directed that the applicant be issued an honorable character of service.  On
24 April 2007, the applicant was accordingly discharged.  

12.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 5-17 of Army Regulation 635-200 due to a condition, not a disability with an honorable character of service.  This form further shows he completed 11 months and 22 days of creditable active military service.  Item 26 (Separation Code) shows the entry "JFV" and item 28 shows the entry "Condition, Not a Disability." 

13.  There is no indication that the applicant suffered from an illness or injury that would have warranted processing through the Physical Disability Evaluation System (PDES) or that he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 
14.  Army Regulation 635-200, chapter 5, paragraph 5-17 states, in pertinent part, that commanders who are special court-martial-convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  Members may be separated for physical or mental conditions not amounting to disability, which includes those members suffering from a disorder manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.  Members separated under this provision of the regulation will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in an entry-level status.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for, and types of, separation from active duty.  The SPD code of "JFV" SPD is the correct code for Soldiers separating under chapter 5-17 of Army Regulation 635-200.  

16.  Army Regulation 635-40 establishes the Army 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 MEBs, 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 MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB:

	a.  Paragraph 2-2b(1) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty (until he is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty.  

	b.  Paragraph 2-2b(2) states when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that: (a) the member, in fact, was physically unable to adequately perform the duties of his office, grade, rank, or rating even though he was properly retained in that office, grade, rank, or rating for a period of time, and (b) acute, grave illness or injury or other 
deterioration of physical condition, that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability, rendered him unfit for further duty.

	c.  Paragraph 2-1 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.

17.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  An adjustment disorder is not considered a reason for referral to a medical evaluation board. 

18.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his narrative reason for separation should be changed to show he was discharged or separated due to a specific medical condition.

2.  The evidence of record shows he underwent a mental health evaluation that diagnosed him as having a mental condition not amounting to disability that potentially interfered with the performance of his duties.  Accordingly, his chain of command initiated separation action against him.  The recommendation for separation was supported by documentation confirming the existence of the mental condition.  He suffered from an adjustment reaction disorder with depressed mood.  However, by regulation, this condition is not considered a reason for referral to an MEB.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

3.  The narrative reason for separation was assigned based on the fact that he was separated under the provisions of chapter 5-17 of Army Regulation 635-200 due to a medical condition-not a disability.  Absent this condition, there was no fundamental reason to process the applicant for discharge.  Therefore, the only valid narrative reason for separation permitted under this paragraph is "Condition, Not a Disability."

4.  There is no evidence the applicant suffered from any injury or illness that would have warranted processing through the PDES.  Therefore, he was not considered by an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated/retired for physical disability.

5.  In view of the foregoing evidence, there is no reason to grant him the requested 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)                                         AR20090017676



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ABCMR Record of Proceedings (cont)                                         AR20090017676



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