IN THE CASE OF:	  

		BOARD DATE:	   22 June 2010

		DOCKET NUMBER:  AR20090020834 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to show he was medically retired.

2.  The applicant states his discharge was based on a medical determination of a pre-existing depressive order, not post-traumatic stress disorder (PTSD).  He states that while he was serving in Iraq in late 2003 and early 2004 he began having issues with depression and was treated for this until he was discharged in 2005.  He states he was initially told he had PTSD, then it was changed to chapter 5, paragraph 5-17, personality disorder.  He further states that on 11 March 2009, the Department of Veterans Affairs (VA) awarded him a rating of 30 percent for depression which was later changed to PTSD.

3.  The applicant provides his DD Form 214; page 3 of a DD Form 2808 (Report of Medical Examination); a memorandum, subject:  Letter of Intent; a Standard 
Form 600 (Health Record - Chronological Record of Medical Care); and an extract of a 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 military records show he enlisted in the Regular Army on 21 August 2001.  He was awarded the military occupational specialty of field artillery tactical data system specialist.  He reenlisted for 2 years on 16 December 2004.  The highest rank/grade he held was specialist/E-4.

3.  A Standard Form 600, dated 31 March 2004, indicated the applicant presented symptoms of depression which were secondary to partner-relational problems.  The applicant indicated he had just returned from deployment and his marriage of more than 2 years was breaking apart.

4.  A DA Form 4856 (General Counseling Form), dated 7 April 2005, indicated the applicant was having disciplinary problems and would be given a reasonable amount of time to correct his deficiencies and to rehabilitate himself into a productive and satisfactory Soldier.  It further stated that if his performance and conduct continues to be unsatisfactory he would be processed for separation from the Army.

5.  A memorandum, subject:  Mental Health Evaluation of [applicant], dated 28 February 2005, stated the applicant was seen on 26-28 February 2005 at the Department of Behavioral Health as an inpatient.  The document stated that a report of the applicant's mental status and diagnostic findings were as follows:  The applicant reported that he was feeling depressed and overwhelmed by his family situation.  This was complicated by his military situation and the discovery that he would not be promoted because he would not accept a transfer to Fort Riley.  He felt hopeless and decided to kill himself.  The applicant reported that he was feeling much better since he felt that he could ask for help if overwhelmed and that he had no intention of killing himself.

6.  The mental health evaluation continued by showing the following:

* behavior:  appropriate
* level of alertness:  fully alert
* mood and affect:  "much better" affect is broad and congruent, embarrassed
* thinking process:  organized, coherent
* thought content:  denied suicidal/homicidal ideation; no hallucinations
* memory:  intact
The diagnostic findings were an adjustment disorder with mixed disturbance of emotions and conduct, partner relational problems, and nicotine dependence.

7.  The applicant's records contain a DD Form 2808, dated 6 April 2005, completed in conjunction with his discharge proceedings under the provisions of paragraph 5-17.  Item 74 of the document shows the applicant was qualified for service.  Item 77 contains the entry, "(2) PTSD/depression - improving on 
Paxil-CR."

8.  On 28 April 2005, the applicant's commander informed him of his intent to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 5-17, for other designated physical or mental conditions.  He stated the reason for the proposed action was the applicant's diagnosis as having an adjustment disorder with mixed disturbance of emotions and conduct.  He stated the applicant had the right to consult with military counsel and/or civilian counsel at no expense to the government within a reasonable time.  The commander also stated the applicant was required to undergo a complete medical examination and mental evaluation in accordance with Army Regulation 40-501 (Standards of Medical Fitness).

9.  On 28 April 2005, the applicant acknowledged receipt of notification of administrative separation.  He further indicated he did not desire military counsel be appointed to assist him and did not choose to submit a statement on his own behalf.

10.  On 3 May 2005, the appropriate authority approved the applicant's discharge from the Army under the provisions of Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions and directed the applicant be given an honorable discharge.

11.  The applicant was discharged from active duty on 9 June 2005.  His DD Form 214 shows he was honorably discharged from active duty by reason of a physical condition that was not a disability.  The form shows he completed a total of 3 years, 9 months, and 19 days of total active service.

12.  Army Regulation 635-200, paragraph 5-17, other designated physical or mental conditions states:

	a.  Commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	b.  When a commander determines a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation in accordance with Army Regulation 40-501.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.

13.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U.S. Code, chapter 61, and DOD Directive 1332.18.  It 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 states 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.

14.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEBD).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

15.  Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  However, an award of a VA rating does not establish error or injustice on the part of the Army.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's employability.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment in order to compensate the individual for loss of civilian employability.

16.  A VA Rating Decision, dated 11 March 2009, provided by the applicant indicates a request was received by the VA to reopen a previous claim.  Based on a review of the evidence listed on the document, the applicant was granted service connection for major depressive disorder (previously claimed as PTSD, dysthymic disorder, and depression) with a rating of 30 percent effective 4 March 2008.  The VA document further states that a 30-percent rating is assigned due to depression.

17.  Title 10, U.S. 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, the VA granted him a disability rating for service connection for PTSD and, therefore, his medical problems are service connected making him eligible for disability retirement benefits.  The VA Rating Decision clearly shows the VA granted him service connection for major depressive disorder (previously claimed as PTSD, dysthymic disorder, and depression) at a 30-percent rating.  As such, there is no evidence he has a service-connected disability rating from the VA for PTSD.

2.  The VA may rate any service-connected impairment, thus compensating for loss of civilian employment.  It may also award 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.  It can also evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, a disability rating granted by the VA would not call into question the application of the fitness standards assigned by proper military medical authorities.  The Army rates only conditions that are determined to be physically unfitting for further military service, thereby compensating the individual for the loss of his or her military career.

3.  A disability rating is not based solely upon the existence of a physical defect, but rather upon the extent to which the defect hampers the individual's performance of duty.  His military records show he was given medical and mental health evaluations.  While the applicant's DD Form 2808 contains the entry, "PTSD/depression - improving on Paxil-CR," item 74 shows he was qualified for service at the time of his discharge proceedings.  As such, there is no evidence he had an unfitting diagnosis that would require an MEBD.  Absent an MEBD referral to a PEB for an unfitting determination/rating, there is no basis for a disability rating leading to a disability retirement.  Only conditions found unfitting by the PEB are authorized for compensation.  As such, the narrative reason for separation, "physical condition, not a disability" shown on his DD Form 214 is correct as currently constituted.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20090020834



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ABCMR Record of Proceedings (cont)                                         AR20090020834



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