IN THE CASE OF:
BOARD DATE: 21 December 2010
DOCKET NUMBER: AR20100014826
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 that item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show she was discharged due to a disability.
2. She states she was evacuated from Iraq and sent to Walter Reed Army Medical Center in March 2003. She opted for an immediate administrative discharge rather than waiting for a medical review board. She furthers states that once she was discharged and after her DD Form 214 was prepared she applied for and received a 30-percent disability rating from the Department of Veterans Affairs (VA). Now she wants to go to college on the Post-911 GI Bill, but she is not eligible for the full benefit because her DD Form 214 states her condition is not a disability. She concludes by stating that her physical condition required her to leave Iraq and is still a disability.
3. She provides copies of:
* her DD Form 214
* a Standard Form 88 (Report of Medical Examination)
* a memorandum from the Walter Reed Army Medical Center
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 she enlisted in the U.S. Army Reserve on 23 December 1999 and was ordered to active duty in support of Operation Enduring Freedom on 27 December 2002. She served in Kuwait from 7 February to 20 March 2003.
3. She submitted a copy of a Standard Form 88, dated 9 April 2003, which shows she underwent an examination on 31 March 2003 and was diagnosed with major depression (existed prior to service). Her complete service medical records are not available.
4. She submitted a memorandum from the Walter Reed Army Medical Center wherein the company commander notified her he was initiating action to discharge her under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), paragraph 5-17, for other designated physical or mental conditions. The commander stated the applicant was diagnosed with major depressive disorder. The commander recommended that her service be characterized as honorable.
5. On 25 April 2003, the applicant acknowledged receipt of the proposed action against her and indicated that she had been advised of her right to consult with counsel prior to making any election of rights. The applicant was also advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to her, and the effect of any action taken by her in waiving her rights.
6. The specific facts and circumstances surrounding the applicant's discharge processing are not available for review. However, the available evidence includes a properly-constituted DD Form 214 that contains the authority and reason for the applicant's discharge. The DD Form 214 shows she was discharged on 10 July 2003 under the provisions of Army Regulation 635-200, paragraph 5-17. Item 28 shows "physical condition, not a disability."
7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her 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.
8. 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.
9. 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 or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. Sections 310 and 331 permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. 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. 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 VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service connected. Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the agency's examinations and findings.
2. The applicant's service medical records and her discharge packet are not available. There is no evidence in the record and the applicant failed to provide evidence that shows she had a medical condition which would have warranted consideration by a medical evaluation board or a physical evaluation board. Without a physical evaluation board, the applicant could not have been issued a medical (disability) discharge. In addition, she acknowledged that she opted for an immediate administrative discharge rather than wait for a medical board that may have shown she did have a medical condition that would have warranted a disability discharge.
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 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) AR20100014826
4
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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