IN THE CASE OF:	  

		BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100018089 


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, in effect, that her discharge be voided and that she be retired by reason of physical disability.

2.  The applicant states that she was raped upon arrival at her first duty station and experienced post-traumatic stress disorder (PTSD) to the point that she could not continue to perform as a Soldier and should have been retired by reason of physical disability.

3.  The applicant provides a letter explaining her application, copies of her medical records, a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), and a copy of her Department of Veterans Affairs (VA) rating decision.

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, though somewhat incomplete, show she was born on 18 November 1981 and she enlisted in the Regular Army in Dallas, Texas, on 6 September 2000 for a period of 4 years and training as a medical specialist.

3.  She completed basic training at Fort Sill, Oklahoma, and advanced individual training at Fort Sam Houston, Texas, before being transferred to Fort Hood, Texas, for assignment to the 1st Cavalry Division in February 2001.

4.  The facts and circumstances surrounding her administrative discharge are not present in the available records.  However, her records do contain a duly authenticated copy of her DD Form 214 which shows that on 2 May 2001 she was honorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-17, due to a physical condition, not a disability.

5.  A review of the documents submitted by the applicant indicates she was seen at a Rape Crisis Center in Collin County, Texas on 20 March 2001, and reported to have been sexually assaulted by her platoon sergeant but waited 3 days after the event to report it.

6.  On 9 April 2001, the applicant was counseled by her commander on her poor duty performance and inability to perform her duties as required.  The applicant disagreed with the counseling session and stated that she had been trying hard, but she lacked the ability to perform emotionally because of her situation.

7.  On 10 April 2001, the applicant's commander again counseled the applicant and informed her that based on an evaluation done by a social work therapist, she was suffering from PTSD and that he was referring her to Mental Health Services.  He also advised her that if the clinical psychologist recommended separation from the service, he would recommend separation under the provisions of Army Regulation 635-200, paragraph 5-17.

8.  On 11 April 2001, the division psychiatrist authored a memorandum for the VA which indicates the applicant was made aware that a medical board for PTSD could take up to 3 months and the applicant insisted that she wanted to get out of the Army and to seek follow-up services as a civilian.  The applicant's situation was discussed with the battalion commander and the chief of psychiatric services.  Medical board and Army Regulation 635-200, paragraph 5-17, procedures were discussed with the applicant and all concerned and the applicant was in agreement that a discharge under paragraph 5-17 was the route she wanted to take.  Progress notes from the VA provided by the applicant indicate she wanted to be discharged but met with resistance initially.

9.  On 2 May 2001, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-17, due to a physical condition, not a disability.  She had 7 months and 27 days of total active service.

10.  In October 2003, the applicant was granted a 30-percent disability rating for PTSD which was subsequently changed to 50 percent in 2004.

11.  Army Regulation 635-200, paragraph 5-17, provides for the separation of Soldiers who have a physical or mental condition that potentially interferes with assignment to or performance of duty; however, the physical or mental condition does not amount to a disability or qualify for disability processing under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

12.  Army Regulation 635-40, paragraph 3-2b, provides 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.

13.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  An award of a VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affects the individual's employability.

DISCUSSION AND CONCLUSIONS:

1.  The mere presence of impairment does not, of itself, justify a finding of physical unfitness and/or medical retirement from the Army.

2.  The fact that the VA has awarded the applicant a disability rating for PTSD does not establish physical unfitness or the degree thereof for Department of the Army purposes.  Although there is no evidence to suggest her condition permanently prevented her from performing her duties, each agency/department is bound to operate within its own rules, regulations, and policies.  The granting of a compensable award by one agency is not tantamount to a lesser, equal, or more enhanced award by the other agency.

3.  The fact that the VA, in its discretion, has awarded her a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Department of the Army.

4.  Disability ratings assigned by the VA are based upon the establishment of service connection of the diagnoses.  This rating may fluctuate from zero to 100 percent based on the former service member's physical condition at the time of each physical examination.  Army disability ratings are not based upon the same principles as the VA and, consequently, the ratings awarded by the VA may differ from those awarded by the Army.

5.  Accordingly, she was properly discharged in accordance with the applicable laws and regulations and her desires at the time, with no indication of any violations of any of her rights.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board 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 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)                                         AR20100018089



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ABCMR Record of Proceedings (cont)                                         AR20100018089



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