IN THE CASE OF:	  

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090021671 


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 his records to show he underwent a medical review board and he was subsequently medically retired. 

2.  The applicant states that he was discharged for a personality disorder but there is no evidence of this condition.  He has since been diagnosed by the Department of Veterans Affairs (DVA) and awarded a service-connected disability rating for a major depressive disorder.

3.  The applicant provides a copy of the DVA rating decision, dated 15 September 2009.

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.  Having had prior service in the U.S. Navy, the applicant's records show he enlisted in the Regular Army in the rank/grade of sergeant (SGT)/E-5 for a period of 3 years and 16 weeks on 12 April 2005.  He held military occupational specialty (MOS) 19D (Cavalry Scout) and he was assigned to the 6th Squadron, 9th Cavalry, 1st Cavalry Division, Fort Hood, TX.

3.  On 22 March 2006, the applicant was arrested by military police officials after having threatened to kill his squadron commander, command sergeant major, and the troop first sergeant (1SG).  He was later released to his unit and he was referred for a mental status evaluation.  The military psychiatrist noted the following:

	a.  The applicant did not have a severe mental disorder at the time.  He manifested a long-standing disorder of character, behavior, and adaptability to such a degree as to preclude adequate military service.  He endorsed homicidal thoughts towards his chain of command but his threats were criminal in nature.

	b.  The applicant should refrain from consuming alcohol and have his security clearance rescinded because he was not suitable for continued service.  The psychiatrist further recommended an administrative separation for misconduct and that until such a separation was accomplished he was encouraged to contact mental health services if his symptoms worsened.

4.  On 25 April 2006, he was counseled by his troop 1SG after displaying symptoms of stress.  The 1SG further notified him that he could not be trusted to lead Soldiers for fear he would lead them on the wrong path.

5.  On 2 June 2006, he underwent a second mental status evaluation wherein it was noted that he indicated he desired to remain on active duty and that he was committed to the treatment.  He also indicated he understood if he repeated past behavior (homicidal ideation/intent, hospitalization, etc.) he could be separated from military service.

6.  On 24 August 2006, he was again counseled by the troop 1SG for having failed to adjust or control his temper and he continued to go through depression.

7.  On 28 August 2006, he underwent another mental status evaluation.  The military social worker noted he did not have a severe mental disorder but manifested a long-standing disorder of character, behavior, and adaptability to such a degree that precluded his continued military service.  The evaluation also indicated the following:

	a.  Although he denied suicidal ideation, due to the life-long pattern of maladaptive responses to routine stress he could become a danger to himself and others.  He was not suitable for continued military service and he would not respond to rehabilitative efforts.  He failed to respond to treatment efforts.

	b.  It was strongly recommended that the applicant be administratively separated under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 5-13, by reason of a personality disorder.  The conditions and problems he presented were not amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification.  He had the mental capacity to understand and participate in the administrative proceedings.

8.  On 13 September 2006, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, paragraph 5-13, by reason of a personality disorder.  The immediate commander remarked that he had a long-standing disorder of character, behavior, and adaptability to such a degree that precluded his continued military service.  Furthermore, it was unlikely that his functioning would improve with psychological treatment or a rehabilitative transfer.  He recommended an honorable character of service.

9.  On 13 September 2006, he acknowledged receipt of the separation memorandum, consulted with legal counsel, and he 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 of the type of discharge and its effect on further enlistment or reenlistment.  He waived consideration of his case by an administrative separation board, waived personal appearance before an administrative separation board, and elected not to submit a statement in his own behalf.

10.  On 13 September 2006, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 5-13. He recommended an honorable discharge.  His intermediate commander subsequently recommended approval with an honorable discharge.

11.  On 20 September 2006, the separation authority approved the proposed separation action against the applicant in accordance with Army Regulation
635-200, paragraph 5-13, and directed he receive an honorable character of service.  On 5 October 2006, the applicant was accordingly discharged.  His DD Form 214 shows he completed 1 year, 5 months, and 24 days of creditable active service during this period.

12.  His medical records show he underwent a complete physical evaluation in connection with his separation and he was determined to be fit for duty.

13.  He submitted a copy of the DVA rating decision, dated 15 September 2009, that shows he was awarded a service-connected disability compensation for the medical conditions of tinnitus and a major depressive disorder.

14.  Army Regulation 635-200 provides for the separation of enlisted personnel.  Paragraph 5-13 provides the criteria for discharge because of a personality disorder.  It states that a Soldier may be separated for personality disorders, not amounting to disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that interferes with assignment to or performance of duty.  The diagnosis of a personality disorder must have been established by a physician trained in psychiatry and psychiatric diagnosis.  Separation because of a 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.

15.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.  It provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In pertinent part, it states that although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion will not serve as the sole basis for a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade, or rating.

16.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  It outlines medical conditions which may 
render and individual unfit or which may preclude enlistment and notes that both personality and adjustment disorders will be dealt with through administrative and not medical channels.  Paragraph 3-35 of this regulation states that a history of or current manifestations of personality disorders render an individual administratively unfit.  These conditions render an individual administratively unfit rather than unfit because of physical illness or medical disability.  These conditions will be dealt with through administrative channels, including Army Regulation 635-200.

17.  Army Regulation 40-400 (Patient Administration) prescribes policies and mandated tasks governing the management and administration of patients.

	a.  Paragraph 5-3 states that patients who do not have a condition listed in Army Regulation 40-501 and who are scheduled for any administrative separation or retirement will be returned to duty for separation.

	b.  Paragraph 7-1 states that physicians who identify Soldiers with medical conditions not meeting fitness standards for retention will initiate a DA Form 3349 (Physical Profile) referring them to the physical disability evaluation system (PDES).  Soldiers issued a permanent profile with a numerical designator of 3 or 4 in one of the physical profile factors who meet retention standards are referred to the MOS/medical retention board.  If the Soldier does not meet retention standards, an MEBD is mandatory and will be initiated by the PEB liaison officer (PEBLO).

	c.  Paragraph 7-5 states that one of the situations that requires MEBD consideration includes a situation involving patients whose medical fitness for return to duty is questionable, problematical, or controversial.  When a member's fitness for further military duty is questionable, it becomes essential that all abnormalities in his or her condition be thoroughly evaluated.

	d.  Paragraph 7-9 states that every effort must be made to distinguish symptoms and impairment resulting from personality disorder or maladaptive traits from impairments based on other psychiatric conditions.

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 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.

19.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA 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 DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA 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 he should be medically retired.

2.  The evidence of record shows he underwent a mental status evaluation that determined he was diagnosed with a personality disorder that severely affected his ability to function effectively in a military environment.  Accordingly, his chain of command initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-13.  His discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of his rights.  The type of discharge directed and the reasons therefore were appropriate under the circumstances

3.  His medical records show he underwent a medical examination prior to discharge and he was found fit for duty.  Nothing in his medical records indicates he was diagnosed with an injury or disease that would have warranted his entry into the PDES.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The applicant was never diagnosed with a medical condition that would have warranted his entry into the PDES.  

4.  He now believes he should have received a medical retirement for a depressive disorder because the DVA granted him service-connected disability compensation for that condition.  However, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and its own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA may award ratings because of a medical condition related to service (service connected) and affects the individual's civilian employability.

5.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.


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)                                         AR20090021671



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ABCMR Record of Proceedings (cont)                                         AR20090021671



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