IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100009056 


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) to show "disability" instead of "physical condition, not a disability."

2.  The applicant states he suffered from severe post-traumatic stress disorder (PTSD) and chronic neck pain since he was in a tactical vehicle wreck in Iraq.  The wreck occurred when the driver and truck commander both fell asleep and the vehicle rolled to its side.  He suffered a spine fracture and PTSD, but his unit falsified the accident report.

3.  The applicant provides a copy of his DD Form 214 and a copy of his 2007 Department of Veterans Affairs (VA) rating decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of 4 years on 5 November 2002 and held military occupational specialty 13M (Multiple Launch Rocket System Crewmember).  The highest rank/grade he attained during his military service was private/E-2.

2.  The applicant's records show he served in Kuwait/Iraq from 10 April 2003 to 27 July 2003.  He was assigned to Battery A, 3rd Battalion, 27th Field Artillery, based at Fort Bragg, NC.

3.  On 25 August 2003, he underwent a self-referred mental health evaluation at Womack Army Medical Center, Fort Bragg.  The evaluation revealed that he was cooperative, alert, oriented, tearful at times but able to compose himself, goal oriented, and with no homicidal or suicidal tendencies.   His diagnoses were as follows:

	a.  Axis I:  adjustment disorder with depressed mood (ruled-out acute stress disorder),

	b.  Axis II:  deferred, and

	c.  Axis III:  status post C5-C6 fracture.

4.  The Chief of the Department of Behavioral Health indicated the applicant did not have a psychiatric condition which would have warranted disposition through medical channels.  He was psychiatrically clear for administrative actions deemed necessary by his chain of command.  His state of emotional and/or behavioral dysfunction was of such severity that his ability to perform military duties was significantly impaired.  His condition met the criteria set forth in Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, for administrative separation.  The command was advised to consider this action as in the best interest of the applicant as well as the unit.

5.  On 3 September 2003, the applicant underwent a psychiatric evaluation wherein it was noted that he had emotional difficulties that warranted separation under paragraph 5-17 of Army Regulation 635-200.

6.  On 10 September 2003, the applicant underwent a physical examination that resulted in a diagnosis of neck pain, neck strain, back strain, and anxiety.  However, he was fully qualified for separation.

7.  On 15 October 2003, his immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of other physical and/or mental medical conditions not compatible with military service.  Specifically, the immediate commander cited the applicant's diagnosis of an adjustment disorder with depressed mood with a ruled-out acute stress disorder.

8.  On 15 October 2003, the applicant acknowledged receipt of the separation memorandum.  He 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 the type of discharge and its effect on further enlistment or reenlistment.  He understood that he could expect to encounter substantial prejudice in civilian life if a general under honorable conditions discharge was issued to him and that 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 in his own behalf.

9.  On 28 October 2003, the applicant's immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions.  He recommended an honorable discharge.

10.  On 18 October 2003, the intermediate commander recommended approval of the recommendation for separation pertaining to the applicant with the issuance of an honorable character of service.

11.  On 29 October 2003, the separation authority approved the proposed separation action against the applicant in accordance with Army Regulation 
635-200, paragraph 5-17, and directed that he receive an honorable character of service.

12.  On 21 November 2003, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged with an honorable character of service by reason of a physical condition, not a disability.  This form confirms he completed 1 year and 17 days of creditable active military service.  Item 26 (Separation Code) of this form shows "JFV" and item 28 shows "physical condition, not a disability."

12.  There is no indication that the applicant suffered from an illness or injury that would have warranted his entry into the Physical Disability Evaluation System (PDES) or that he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB).

13.  On 9 May 2007, the VA increased his 2003 compensation for service-connected disability from 40 percent to 60 percent as follows:  PTSD increased from 30 percent to 50 percent, left cervical spine fracture residuals at 10 percent, and low back condition at 0 percent.

14.  Army Regulation 635-200, paragraph 5-17, states 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 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 MEB's, 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 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

16.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities. Paragraph 3-36 (Adjustment Disorders) states situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.

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

18.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA 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 VA does not have authority or responsibility for determining physical fitness for military service.  The VA 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, the VA may award a rating for a condition even though the Army did not find the individual unfit for duty.  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 the narrative reason for his separation should be changed to "disability."

2.  The evidence of record confirms the applicant underwent a mental health evaluation that diagnosed him as having a mental condition not amounting to a 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 a condition.  He suffered from an adjustment disorder with depressed mood sufficiently severe that his ability to effectively perform military duties was significantly impaired.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The narrative reason for separation was assigned based on being separated under the provisions of Army Regulation 635-200, paragraph 5-17, due to a physical 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 "physical condition, not a disability."

4.  The applicant's adjustment disorder with depressed mood did not render him unfit because of physical disability, but was the basis for his administrative separation as it caused interference with his military duties.  There is no evidence that he was diagnosed with PTSD or any other injury or illness that would have warranted his entry into 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, he could not have been issued a medical discharge or separated/retired for physical disability.

5.  He now believes he should receive a disability separation because the VA granted him a rating for PTSD, residuals of left cervical spine fracture, and low back pain.  However, an award of rating by another agency does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) which affects the individual's civilian employability.  

6.  Therefore, he is not entitled to the relief requested.

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)                                         AR20100009056



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ABCMR Record of Proceedings (cont)                                         AR20100009056



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