IN THE CASE OF:	  

		BOARD DATE:	  3 June 2010

		DOCKET NUMBER:  AR20090018100 


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 her discharge be changed to a medical retirement.  Additionally, she requests verification of an improvised explosive device (IED) attack.

2.  The applicant states that the narrative reason on her DD Form 214 (Certificate of Release or Discharge from Active Duty) should be changed from "not a disability."  She adds that she has at least a 40-percent disability rating from the Department of Veterans Affairs (VA).  The applicant also requests that her records be reviewed to verify an IED attack.

3.  The applicant provides a copy of her DD Form 214 and VA rating decision.

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 she enlisted in the Regular Army on 6 March 2003.  She served in Iraq from 16 December 2004 to 15 December 2005.

3.  On 29 November 2005, the commander requested a mental evaluation of the applicant due to panic attacks.

4.  On 16 December 2005, the applicant was psychiatrically cleared for any action deemed appropriate by the command.  In the psychiatric evaluation of the applicant, the Chief, Department of Mental Health, Fort Irwin, California, said that the evaluation diagnosed the applicant with mild post-traumatic stress disorder (PTSD) and major depression.  The comments indicated the applicant was diagnosed with "acute chronic situation maladjustment."  The remarks stated the following:

[Applicant] was returned early from deployment due to an ear injury and mental health issues.  She has been seen in the clinic since August 2005 with LTC R___.  She has had continued difficulties adjusting to a permanent partial hearing loss in one ear and readjusting to her unit.  She is geographically separated from her husband who lives about 2 hours away with his children.  She returns on the weekends; however, the marital pressure to be more involved in the family has continued to have a significant negative impact on the relationship and her ability to focus and improve in her treatment.  Her symptoms have worsened over the course of the past two months to include weight loss, sleeplessness, increased anxiety, and anhedonia.  She has been put on medications to help treat depression; however, it is strongly recommended that she be considered for a chapter 5-17 [sic] separation.  She reports her [expiration of term of service] date is March 2005 [sic] and she has been informed that a chapter may not release her from active duty much earlier than she would already be released.  [Applicant] states that any earlier would help her both mentally and in her relationship.  She also has had the additional stress of her father's long term illness which has deteriorated recently.

5.  The applicant's DD Form 2807-1 (Report of Medical History) documents the following:

* anxiety - after flashbacks, once per week - improving; in PTSD support group
* depression - improving (off antidepressant)
* PTSD with mild depression - under psychiatric care, improving, not debilitated

6.  The applicant annotated on the DD Form 2807-1 that she had back and shoulder pain due to an IED accident in July 2005.  There are no other documents in her available file that verifies this IED attack.

7.  On 31 January 2006, the applicant's commander initiated action to separate her under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, due to being diagnosed with PTSD.

8.  On 16 February 2006, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-17.  She was credited with 2 years, 11 months, and 11 days of active Federal service.  Item 28 (Narrative Reason for Separation) of the applicant's DD Form 214 lists "condition, not a disability."

9.  The applicant's VA rating decision document shows she received a 
30-percent disability rating for PTSD and 10 percent for traumatic brain injury.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the separation of enlisted personnel.  Paragraph 5-17 states a commander may approve separations 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 duty.

11.  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 office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states commanders of medical treatment facilities (MTF's) who are treating Soldiers may initiate action to evaluate the Soldier's physical ability to perform the duties of his or her office, grade, rank, or rating.  The commander will advise the Soldier's commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an medical evaluation board (MEBD).

12.  Army Regulation 635-40 states that MEBD's 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

13.  Army Regulation 40-501, paragraph 3-33, states that anxiety, somatoform, or dissociative disorders, when (a) persistence or recurrence of symptoms are sufficient to require extended or recurrent hospitalization, or (b) persistence or recurrence of symptoms necessitate limitations of duty or duty in a protected environment, or (c) persistence or recurrence of symptoms result in interference with effective military performance; are causes for referral to an MEBD.

14.  The Diagnostic and Statistical Manual of Mental Disorders, 4th edition, classifies PTSD as an anxiety disorder.

DISCUSSION AND CONCLUSIONS:

1.  On 16 December 2005, the Chief, Department of Mental Health, diagnosed the applicant with mild PTSD and major depression.  The psychologist listed stressors including hearing loss, readjusting to her unit, geographical separation from her husband, and marital pressure in her comments.  She noted that the applicant was being treated for depression, but the applicant stated that "any earlier (release) would help both mentally and in her relationship."  There is no mention of PTSD in the medical provider's comments supporting her recommendation for a separation under the provisions of paragraph 5-17.

2.  It appears the applicant returned early from deployment based on "an ear injury and mental health issues."  She was physically separated from her husband and his children and apparently having marital problems because of the separation.  She was diagnosed with mild PTSD and major depression that both were responding to treatment and were not considered to be unfitting or a reason for discharge.  The applicant was adamant about her need for an early separation, arguing that it would help her marriage.

3.  It is unfortunate that the applicant's company commander cited PTSD as a reason for the discharge.  He either did not read or did not understand the psychologist's justification for recommending a paragraph 5-17 discharge.  However, his error does not represent an injustice to the applicant.

4.  The applicant was diagnosed with mild PTSD that responded to treatment and was not unfitting.  Her reason for discharge was an adjustment disorder.  There is no evidence presented suggesting that the applicant had an unfitting medical condition at the time of separation.

5.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment she received in service or any evidence to show that she was denied due process.  Consequently, there is no basis for granting the applicant's request to correct her records to show that she was medically retired.

6.  The applicant also requests verification of her IED attack.  However, there is no information contained in her available records to show that she was involved in an IED attack.  Therefore, in the absence of documentation to support her claim, there is an insufficient basis to grant her request.

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)                                         AR20090018100



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ABCMR Record of Proceedings (cont)                                         AR20090018100



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