IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100011246 


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 change of his honorable discharge to a medical retirement.

2.  The applicant states his medical condition was not given any consideration at the termination of his service.  He adds prior to his discharge from the Army, he was treated for dysthymic disorder (depressive neurosis) on several occasions and prescribed medication.  He opines that dysthymic disorder is just another name for post traumatic stress disorder (PTSD).  The applicant states upon his discharge he immediately went to the Department of Veterans Affairs (VA) where he was evaluated and received a 50 percent disability rating for PTSD.  

3.  The applicant provides the following:

* Self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Permanent Orders 314-116, dated 10 November 2005
* Health Records extract
* VA Decision Document

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 he originally enlisted in the Regular Army (RA) on 2 July 1991.  He served 6 years and on 1 July 1997, he was released from active duty with an honorable characterization of service and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining Reserve obligation.  On 3 April 2003, the applicant again enlisted in the RA and served 4 years.  

3.  Permanent Orders 314-116, dated 10 November 2005, show the applicant was awarded the Combat Action Badge (CAB) as a result of being engaged by the enemy via indirect fire on 8 June 2005. 

4.  The applicant provided copies of documents extracted from his health records that show he was seen at the servicing medical clinic on the following dates for the following conditions:

	a.  20 February 2006, Post deployment screening exam.  Psychological symptoms, he had a long history of depression (since teen) and was treated with tricyclic antidepressant as a teenager, but had no medication in several years.  The applicant reported an overall feeling of malaise/generalized anhedonia.  He desired evaluation/counseling and wished to avoid medication.  

	b.  6 December 2006, Redeployment follow-up.  Problems listed were Dysthymic Disorder, (depressive neurosis), non-neoplastic nevus, warts, Tuberculin induration positive interpretation and nonspecific reaction without active tuberculosis.  Medications for Dysthymic Disorder included Amitriptyline and Bupropion.

   c.  19 December 2006,  Follow-up appointment.  Problems listed were Dysthymic Disorder, (depressive neurosis), non-neoplastic nevus, warts, Tuberculin induration positive interpretation and nonspecific reaction without active tuberculosis.  Deployment related visit.  Depression and anhedonia in the past two weeks.

5.  The applicant's official military personnel file contains a DA Form 4991-R (Declination of Continued Service) that shows on 5 June 2006, he signed this form declining to reenlist and/or extend to meet his service obligation.  He elected to be discharged at his expiration term of service (ETS), 2 April 2007.

6.  The applicant's medical records and his separation medical examination are not available for review.  However, the applicant's DD Form 214 shows he was released from active duty on 2 April 2007 under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 4, by reason of completion of required active service.

7.  The applicant's VA Rating Decision document, dated 4 February 2008, shows he received a 50 percent disability rating for PTSD.  The decision document stated the applicant's award of the CAB confirmed his exposure to an in-service stressor.

8.  Army Regulation 635-40, (Physical Evaluation for Retention, Retirement, or Separation) states 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.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until Soldier is scheduled for separation, is an indication that the individual is fit.  

9.  This same regulation states the commander will refer a Soldier to the servicing medical treatment facility for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating.  The medical treatment facility commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation.  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 medical treatment facility commander will refer the soldier to a MEB. 

10.  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.  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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his diagnosis of dysthymic disorder (depressive neurosis) is the same as PTSD.  He provides selected medical records that show he was diagnosed with recurrent major depression which was noted to be mild and in partial remission.  Evidence shows the applicant had a long history of depression (since teen) as noted in his post deployment screening exam, and was previously treated with tricyclic antidepressant.

2.  There is no evidence and the applicant did not provide any to show that he was physically unfit to perform his duties at the time of his separation.  Further, the evidence of record shows the applicant signed a declination of continued service and elected to be separated at his ETS.

3.  The applicant implies that since he received a 50 percent disability rating percentage from VA for PTSD he should receive a similar rating and a subsequent medical retirement.  The VA is not required by law to determine medical unfitness for further military service.  The VA 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. Consequently, the applicant's medical condition of depression, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement may be sufficient to qualify him for VA benefits based on an evaluation by that agency.

4.  Furthermore, an award of a VA disability rating subsequent to separation from the service does not establish entitlement an individual to medical retirement or separation.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. The VA can evaluate a veteran throughout his/her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  On the contrary, the Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  Consequently, there is no basis for granting the applicant's requested relief.

5.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment he received in service or any evidence to show that he was denied due process.  Consequently, there is no basis for granting the applicant's request to correct his records to show that he was medically retired.
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)                                         AR20100011246





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ABCMR Record of Proceedings (cont)                                         AR20100011246



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