BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100019593 


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 the narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to reflect he was discharged due to a physical disability.

2.  The applicant states the narrative reason separation reflects he was discharged for as “Condition, Not a Disability”; however, this is not true today nor was it at the time of discharge.  He goes on to state that his condition was and is a disability and he is currently receiving disability from the Department of Veterans Affairs (VA).  

3.  The applicant provides a copy of his VA Rating Decision and a copy of his
DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 25 April 2006 for a period of 4 years, training as an infantryman, a cash enlistment bonus, and the Army College Fund.  He completed all of his training at Fort Benning, Georgia and was transferred to Fort Riley, Kansas for assignment to the 16th Infantry Regiment.

2.  He deployed to Iraq with his unit on 5 February 2007 and was advanced to the pay grade of E-3 on 25 April 2007.  


3.  On 28 November 2007 the applicant underwent a behavioral heath evaluation by the staff psychiatrist at Division Combat Stress Control.  The psychiatrist diagnosed the applicant as having an adjustment disorder with depressed and anxious mood.  The psychiatrist also indicated that while he met retention standards, he should be administratively discharged under the provisions of Army Regulation 635-200, paragraph 5-17, because he would not respond to rehabilitative measures and he demonstrated an inability to adjust to the military structure and way of life.

4.  On the same day (28 November 2007) the applicant’s commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200, paragraph 5-17, because of other designated physical or mental conditions not amounting to disability due to being diagnosed as having an adjustment disorder. 

5.  On 30 November 2007, after consulting with counsel, the applicant declined to submit a statement in his own behalf and acknowledged that he understood he would receive an Honorable Discharge.

6.  On 25 December 2007, he departed Iraq and returned to Fort Riley where he was honorably discharged on 11 January 2008 under the provisions of Army Regulation 635-200, paragraph 5-17 due to a condition, not a disability.  He had served 1 year, 8 months, and 17 days of total active service.

7.  There is no evidence in the available records to show the applicant was deemed unfit for retention or separation due to physical disability or that he was unable to comply with the requirements of his military occupational specialty (MOS).

8.  The VA Rating Decision provided by the applicant shows the VA granted the applicant a 50% Disability Rating for Post Traumatic Stress Disorder (PTSD) and Dysthymic Disorder (claimed as anxiety and stress) effective 12 January 2008.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade or rating.  It also provides that when a commander believes that a Soldier of his or her command is unable to perform the duties of his or her office, grade, rank or rating because of physical disability, the commander will refer the Soldier to the responsible medical treatment facility (MTF) for evaluation.  If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a Medical Evaluation Board (MEB).

10.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-26, states situational maladjustment 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.

11.  There is a difference between the VA and the Army disability systems.  While both the VA and the Army use the VA Schedule for Rating Disabilities (VASRD) to determine percentage ratings, not all of the general policies set forth in the VASRD apply to the Army; thus, there are sometimes differences in ratings. The Army's determination of a Soldier's fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the physical evaluation board hearing.  The VA may find a Soldier unfit by reason of service connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending upon the changes in the disability.

12.  Title 38, United States 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 VA rating does not establish error or injustice in whether or not an Army rating is given, or in an Army rating that is given.  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 affect the individual’s civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different 
policies, to arrive at different positions.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant was properly evaluated for separation by competent military medical authorities due to designated physical or mental conditions not amounting to a disability based on being diagnosed as having an adjustment disorder and that he did not qualify for separation under the Physical Disability Evaluation System.

2.  The fact that the VA in its discretion has awarded the applicant a disability rating does not establish physical unfitness of any degree for Department of the Army purposes.  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.  Therefore, absent evidence to show he was deemed unfit to perform the duties of his MOS due to physical disability there appears to be no basis to change the narrative reason or the authority for his discharge.  

4.  An individual’s right to appear before a medical review board is contingent on an evaluation by medical personnel who determine that the Soldier is not medically qualified to perform his duties.  There is no evidence in the available records to show that such was the case.  Accordingly, there is no basis to grant his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x___  ____x____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   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)                                         AR20100019593



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ABCMR Record of Proceedings (cont)                                         AR20100019593



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