IN THE CASE OF:	

		BOARD DATE:	  6 July 2010

		DOCKET NUMBER:  AR20100000565 


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 the narrative reason for her discharge be changed from personality disorder to medical (physical disability).  

2.  The applicant states she was experiencing major problems when she was transferred to Colorado.  She claims her unit forced her to run outside in 
7 degree weather which messed up her breathing and her unit thought she was faking asthma.  

3.  The applicant provides a homecare work order for medical supplies in support of her application. 

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.  On 29 November 2005, the applicant enlisted in the Regular Army and entered active duty.  She was trained in and awarded military occupational specialty (MOS) 92G (Food Service Specialist).  Private first class/E-3 is the highest rank she attained while serving on active duty.  

3.  On 14 and 20 February 2006, mental status evaluations were completed on the applicant by the staff psychiatrist, Fort Carson, Colorado.  The applicant was diagnosed with an Axis I, adjustment disorder with depression; Axis II, personality disorder with borderline features; and Axis III, knee and circulatory problems.  The examining psychiatrist determined the applicant met medical retention standards, she was mentally responsible and she had the mental capacity to understand and participate in separation proceedings.  The examining psychiatrist recommended the applicant’s separation by reason of personality disorder.  

4.  The applicant's record contains medical treatment records showing she received treatment for several illnesses while serving on active duty.  These records fail to show any of these illnesses were physically disabling and/or supported separation processing through medical channels at the time of her discharge.  

5.  On 23 February 2006, the unit commander notified the applicant that he intended to recommend her for separation under the provisions of paragraph
5-13, Army Regulation 635-200 (Personnel Separations), due to personality disorder with an honorable discharge due to her inability to perform her duties as a result of mental deficiencies involving depressive disorder and personality disorder with borderline features.  

6.  On 23 February 2006, the applicant acknowledged receipt of the separation action notification.  She consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to her and the right to waive those rights.  She elected not to submit statements in her own behalf.  

7.  On 23 February 2006, the separation authority approved the applicant's separation under the provisions of paragraph 5-13, Army Regulation 635-200, by reason of personality disorder and directed the applicant receive an honorable discharge.  On 3 March 2006, the applicant was discharged accordingly.



8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon her discharge shows she completed a total of 
1 year, 3 months, 16 days of active military service and that she earned the Army Achievement Medal, National Defense Service Medal, Global War on Terrorism Service Medal, and Army Service Ribbon. 

9.  The applicant provides a home care medical supply work order showing she received a Nebulizer Kit through the Department of Veterans Affairs (VA) on 
30 April 2009.  

10.  Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel of the Army.  Paragraph 5-3 contains the policy for separating members by reason of personality disorder.  It provides for separating members with less than 24 months of active duty service for a diagnosed personality disorder (not amounting to a disability) that interferes with the normal performance of duty.  

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 her office, grade, rank, or rating.  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 her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

12.  Chapter 3 of Army Regulation 635-40 contains guidance on standards of unfitness because of physical disability.  It states, in pertinent part, that the mere presence of an 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 her office, grade, rank, or rating.

13.  Paragraph 3-2 of Army Regulation 635-40 contains guidance on fitness presumptions.  It states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  



14.  Paragraph 3-2. Army Regulation 635-40 further states when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

15.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that she should have received a medical discharge has been carefully considered.  However, the evidence is not sufficient to support this claims.  

2.  The mere presence of an impairment does not, in and 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 her office, grade, rank, or rating.

3.  The evidence of record shows the applicant's separation processing under the provisions of paragraph 5-13, Army Regulation 635-200, was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It further confirms that the applicant was only discharged by reason of personality disorder after undergoing a comprehensive mental status evaluation and being diagnosed with a personality disorder (not amounting to a physical disability) that interfered with her performance of duty.  

4.  The medical evidence of record and the independent medical evidence provided by the applicant shows she was treated for various illnesses while serving on active duty; however, the evidence fails to show these conditions were sufficiently disabling to disqualify her from further service or to support separation processing through medical channels.

5.  The medical work order provided by the applicant shows she received a nebulizer kit through the VA; however, it fails to show the condition for which she received the equipment was physically disabling and warranted separation processing through the PDES at the time of her discharge.  

6.  The applicant is advised that the VA is the appropriate agency to provide her medical treatment and compensation for service connected medical conditions that were not found permanently disabling at the time of her discharge.  The VA, in accordance with its own policies and regulations, awards 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.  The VA can evaluate a veteran throughout her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards applied by military medical authorities at the time of her discharge.  

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 has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100000565



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)