IN THE CASE OF:	  

		BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100020008 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show that she was discharged by reason of service-connected disability.

2.  The applicant states that her DD Form 214 shows she was discharged by reason of a condition, not a disability; however, she was discharged for a service-connected disability, the same disability she now receives compensation for from the Department of Veterans Affairs (VA).

3.  The applicant provides:

* her DD Form 214
* her VA Rating Decision

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 12 July 2006 for a period of 3 years, training as a Patriot Crewmember, and a cash enlistment bonus.  She completed her training and she was transferred to a Patriot Battery in Babenhausen, Germany.

2.  On 26 October 2007, the applicant’s commander notified her that he was initiating action to separate her from the service under the provisions of Army 


Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions.  He cited as the basis for his recommendation that the applicant had been diagnosed by a licensed psychologists as suffering from depression complicated by personality traits.

3.  After consulting with counsel, the applicant waived her rights and elected not to submit a statement in her own behalf.

4.  On 8 December 2007, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-17, due to a condition, not a disability.  Her DD Form 214 shows she was issued a separation code of "JFV."  She had served 1 year, 4 months, and 27 days of total active service.

5.  The VA Rating Decision provided by the applicant shows she was granted a 30 percent (%) disability rating percentage for a major depressive disorder effective 9 December 2007.

6.  There is a difference between the VA and the Army disability systems.  While both the VA and the Army uses 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.

7.  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). 

8.  Title 38, U.S. Code, sections 310 and 331, 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.

9.  Army Regulation 635-5-1 (Separation Program Designator (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 JFV is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 5-17 by reason of a condition, not a disability.  

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant was properly deemed fit for separation and that she 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 thereof 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.  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 duty.  Therefore, absent evidence to show that she was deemed unfit to perform the duties of her MOS or to be retained in service, there appears to be no basis to grant her request.  


4.  Accordingly, it appears that the applicant was properly discharged in accordance with the applicable regulations with no violations of any of the applicant’s rights and that the proper separation authority, SPD code, and narrative reason for separation were correctly applied.

5.  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 the aforementioned 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 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)                                         AR20100020008



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ABCMR Record of Proceedings (cont)                                         AR20100020008



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