IN THE CASE OF:	  

		BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100014416 


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 record to show he was medically retired and that his Separation Program Designator (SPD) Code be changed to the proper code.

2.  He states, in effect, he should be medically retired because Soldiers are being medically retired for the same reason he was discharged.  He further states the Department of Veterans Affairs (DVA) had determined he is 100 percent permanently disabled due to Post Traumatic Stress Disorder (PTSD).  He states that his sleeping disorder and Tourette's disorder are direct results of PTSD.  He also states the SPD Code of LFV that is currently shown in item 26 (Separation Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) is incorrect.

3.  He provides copies of:

* his DD Form 214
* a Progress Note, printed on 5 February 2005
* a Certificate of Eligibility from the DVA, dated 6 August 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.  The applicant's records show he enlisted in the Regular Army on 7 September 1999.

3.  On 29 March 2005, the applicant underwent a mental status evaluation wherein he was diagnosed with the following:

* Axis I:  somnambulism (sleepwalking) and Tourette's (tic) disorder
* Axis II:  none
* Axis III:  none

4.  He was found to be free of psychosis or severe neurosis that would preclude administrative separation or any other administrative actions deemed necessary by the commander.

5.  On 3 May 2005, the company commander notified the applicant that he was initiating action to discharge him under the provisions of Army Regulation
635-200 (Personnel Separations), paragraph 5-17, Other Designated Physical or Mental Conditions.  The commander stated the applicant was diagnosed with Tourette's syndrome and somnambulism which are difficult to treat and made the applicant a danger in the field or on a deployment.  The commander recommended that his service be characterized as honorable.

6.  On the same day, the applicant acknowledged receipt of the proposed action against him and he indicated that he desired to consult with legal counsel.  The applicant was also advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  The applicant declined to submit statements in his own behalf.

7.  On 4 May 2005, the appropriate authority approved the separation recommendation, directed that he be issued an honorable discharge, and disapproved his transfer to the Individual Ready Reserve.  


8.  The DD Form 214 issued to him at the time of separation contains the following pertinent information:

* Item 23 (Type of Separation) shows he was released from active duty (REFRAD)
* Item 24 (Character of Service) shows his service was characterized as honorable
* Item 25 (Separation Authority) shows he was separated in accordance with the provisions of Army Regulation 635-200, Chapter 5-17
* Item 26 of his DD Form 214 shows the SPD code of LFV
* Item 28 (Narrative Reason for Separation) shows "Physical Condition, Not a Disability"
* Item 9 (Command to Which Transferred) shows the U.S. Army Reserve (USAR) Control Group (Reinforcement)

9.  The applicant submitted a Progress Note, printed 5 February 2008, from the Tampa, FL DVA Medical Center which shows the following diagnosis:

	a.  Axis I:  PTSD, Combat-related, Bipolar II Disorder, Partner Relational Problems, Sleepwalking Disorder, Mood Disorder due to general medical condition, alcohol dependence (in full remission), Attention Deficit Hyperactivity Disorder, and Conduct Disorder;

	b.  Axis II:  Deferred:

	c:  Axis III:  Tourette's Disorder, H/O (history of) head injury in Iraq, from IED [improvised explosive device], chronic headache and periodic blurred vision, Gastroesophageal Reflux Disease, pain in knees and back; and

	d.  Axis IV:  Combat Exposure, problems with primary support group (marital problems and young baby), financial problems, housing problems (living with wife's parents), and physical and emotional abuse as a child.

10.  The applicant submitted a copy of a certificate from the DVA Regional Office, Phoenix, AZ, dated 6 August 2009, which shows he is an honorably discharged veteran of the Army and he has a service-connected disability evaluated at 100 percent.

11.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  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 (world-wide deployability) will not serve as the sole basis for a finding of unfitness.

12.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17 provides that a Soldier may be separated for other physical or mental conditions not amounting to a disability under Army Regulation 635-40 that interferes with assignment to or performance of duty.  The regulation requires that the condition interferes with the Soldiers’ ability to perform duty, and requires that the diagnosis be so severe that the Soldier’s ability to function in the military environment is significantly impaired. 

13.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code of JFV is the appropriate code to assign to Soldiers discharged under the provisions of Paragraph 5-17, Army Regulation 635-200, by reason of Physical Condition, Not a Disability. 

14.  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 a disability incurred while entitled to basic pay.  Sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA 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’s contention that his DVA rating decision supports a medical retirement was carefully considered.  However, this document is insufficient to provide a basis to grant the requested relief.

2.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  The DVA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service-connected.    



3.  The available evidence shows the applicant was medically cleared for separation.  His commander noted that his conditions made him a danger in the field or on a deployment, not that they rendered him unable to perform his duties. There is no evidence in the record and the applicant failed to provide evidence that shows he was diagnosed with PTSD or that he had a medical condition which would have warranted consideration by an MEB or a PEB by rendering him unfit to perform his duties.  

4.  On 4 May 2005, the appropriate authority directed that he be issued an honorable discharge and disapproved his transfer to the Individual Ready Reserve.  Item 23 of his DD Form 214 erroneously shows he was REFRAD and item 9 erroneously shows he was transferred to USAR Control Group (Reinforcement).  Therefore item 23 of his DD Form 214 should be corrected to show he was discharged and item 9 should be corrected to show "NA" since a transfer is not applicable in this case.

5.  By regulation, the proper SPD code to assign members discharged by reason of physical/mental condition, not a disability, under the provisions of Paragraph 
5-17, Army Regulation 635-200, is JFV.  Therefore item 26 of his DD Form 214 should be corrected to show his SPD Code as JFV vice LFV.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_________  _______  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual be corrected by amending his DD Form 214 as follows:

	a.  delete the current entry and in item 9 and add the entry "NA";

	b.  delete the current entry in item 23 and the entry "DISCHARGED"; and

	c.  delete the current entry in item 26 and add the entry "JFV."

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing the applicant's discharge from a physical condition, not a disability to a medical retirement.



      __________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)                                         AR20100014416



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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