IN THE CASE OF:	  

		BOARD DATE:	    13 April 2011

		DOCKET NUMBER:  AR20100020167 


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 records as follows:

* Set aside her involuntary separation from active duty by reason of non-selection for promotion
* Disability retirement
* Entitlement to back pay and allowances

2.  The applicant states she was a U.S. Army Reserve (USAR) officer, serving in the Active Guard Reserve (AGR) program, undergoing medical separation processing by reason of non-selection for promotion to major (MAJ).  She underwent a medical evaluation board (MEB) in November 2001 to determine her medical unfitness for mental health conditions [post-traumatic stress disorder (PTSD) and major depression]; however, her USAR unit ignored the MEB's recommendation and continued separation processing.  She was ultimately discharged by reason of non-selection for promotion.  By regulation [Army Regulation 600-8-24 (Officer Transfer or Discharges)] medical processing takes precedence over this reason.  Additionally, the Department of Veterans Affairs (VA) diagnosed her with service-connected disabilities (major depression, PTSD, and other orthopedic disabilities).

3.  The applicant provides two binders that contain Exhibits A through Q as follows:

* Exhibit A:  Attachment orders, discharge orders, DD Form 214 (Certificate of Release or Discharge from Active Duty), and Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)
* Exhibit B:  Department of the Army Active Duty Board (DAADB) decision and allied documents
* Exhibit C:  Two memoranda of non-selection for promotion
* Exhibit D:  Various officer evaluation reports, awards, Officer Record Brief, two General Officer Memoranda of Reprimand (GOMOR) and allied documents, DD Form 214, and a diploma
* Exhibit E:  Nurse practitioner outpatient notes
* Exhibit F:  Mental health attending notes
* Exhibit G:  Emergency department notes for headache
* Exhibit H:  VA authorization of a psychological services
* Exhibit I:  Nurse practitioner outpatient notes regarding facial pain
* Exhibit J:  Nurse practitioner outpatient notes regarding a rash
* Exhibit K:  VA rating decision
* Exhibit L:  Consultation sheet regarding anxiety
* Exhibit M:  Navy Statement of Patient concerning the findings of a medical board
* Exhibit N:  San Pedro Peninsula Hospital, San Pedro, CA Admission/Registration Form
* Exhibit O:  Extract of Army Regulation 600-8-24 and various VA printouts
* Exhibit P:  Dozens of TRICARE claims pertaining to counsel
* Exhibit Q:  Hospital operative report (left elbow complex wound) and various copies of TRICARE claim summary, pertaining to counsel 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests setting aside the applicant's 1 January 2001 involuntary discharge by reason of non-selection for promotion and granting her 100 percent (%) disability retirement [50% for PTSD, 30% for depressive disorder,
20% for degenerative joint disease (feet), and 10% for degenerative joint disease (spine/chronic low back pain).

2.  Counsel states in a 24-page brief that the applicant has been suffering from serious psychiatric disease and personal hardship since 2000.   He gives a background regarding the applicant's military service and briefly mentions his own illness.  He states that the applicant underwent an MEB that found her unfit for service for depressive disorder, PTSD, migraines, and chronic arthritic low back pain shortly before discharge and referred her to a physical 

evaluation board (PEB).  However, due to an administrative error, she was never referred to the PEB and she was administratively discharged.  Since her discharge, she has had life difficulties to cope and survive.  The VA diagnosed her with depression and ultimately awarded her service-connected disability compensation.

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 record shows she was born on 9 September 1955.

3.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer, Adjutant General (AG) Corps, in the rank of second lieutenant and she executed an Oath of Office on 22 May 1987.  She served in staff or leadership positions and attained the rank of captain (CPT).

4.  On 27 August 1995, she entered active duty in an AGR status.  She was initially assigned to Fifth U.S. Army, Fort Lewis, WA, and she received a Meritorious Service Medal for meritorious service from August 1995 to June 1997.  In September 1999, she was reassigned to the 311th Corps Support Command (COSCOM), Los Angeles, CA.

5.  During the month of September 1999, she received an annual officer evaluation report that covered the rating period 30 September 1998 through 29 September 1999.  The OER shows the following entries:

	a.  In Part IVa (Performance Evaluation-Professionalism-Values), the rater placed an "X" in the "No" block for "Selfless Service."

	b.  In Part IVb (Performance Evaluation-Professionalism-Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" blocks for "Communicating," "Developing," and "Motivating."

	c.  In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Other" block and entered appropriate comments in Part Vb (in part, personal agenda often takes precedence over priorities of the Army; at times, she has been confrontational with subordinates and senior staff; makes careless, avoidable mistakes on written correspondence; and failed to inspire, motivate, and develop subordinates). 

	d.  In Part VIIa (Senior Rater), the senior rater placed an "X" in the "Do Not Promote" block and entered appropriate comments (in part, she often cannot be relied upon to get the job done; she needs to be closely monitored to ensure her responsibilities and suspense are met; despite counseling and mentoring, this officer shows little or no improvement in completing key personnel actions in the designated time period; her repeated acts of insubordination, persistent failure to follow instructions and guidance from her section chief, and inability or unwillingness to perform at the technical proficiency expected of her grade and experience have, at times, required other personnel staff to assist or redo her assignments).

6.  On 7 January 2000, the OER was referred to her for acknowledgment and comments.  There is no indication that the applicant appealed this OER within the time frame authorized by Army Regulation 623-105 (Officer Evaluation Reporting System).

7.  On 9 January 2000, she was reprimanded by the Deputy Commanding General, 311th COSCOM, for engaging in a pattern of misconduct that included repeated use of profane language and a loud abusive tone of voice toward other Soldiers of all ranks and in the presence of Navy cadets; inability to control or manage her anger; refusal to accept constructive criticism, counseling, and guidance; recurring, sudden, and unauthorized departures from her place of duty; and substandard performance of duty, even after repeated mentoring and guidance.

8.  She acknowledged receipt of this reprimand and submitted a rebuttal in her defense.  But, after carefully examining her undated response and rebuttal of the allegations, the imposing general officer (GO) ordered the administrative reprimand be filed in her official military personnel file (OMPF).

9.  On 2 February 2000, she submitted a rebuttal to the referred OER wherein she asked that her rating officials rewrite the OER so as to reflect her performance instead of the rating officials' subjective assumptions.

10.  On 22 July 2000, she was again reprimanded by the CG, 31th COSCOM, for conduct unbecoming an officer and substandard performance.  During a training exercise, she was asked to perform a briefing but had trouble answering questions and became very angry.  She started yelling and accused everyone in the G-1 section of working against her and then stormed out of the office without permission, stating she was going on sick call.

11.  She acknowledged receipt of the reprimand and submitted a rebuttal in her defense.  However, after carefully examining her 30 August 2000 response and rebuttal of the allegations, the imposing GO ordered the administrative reprimand be filed in her OMPF.

12.  On 10 August 2000, by memorandum, she was notified that she had been considered for promotion to MAJ by the 2000 Department of the Army (DA) mandatory Reserve Components Selection Board (RCSB) that convened on 7 March 2000; however, she was not selected.

13.  On 21 September 2000, the applicant's records were submitted to the DAADB in accordance with Army Regulation 600-8-24, paragraph 2-31, based on her misconduct, moral and/or professional dereliction.

14.  On 26 February 2001, by memorandum, the Director, Full Time Support Management Directorate, U.S. Army Reserve Personnel Command, St. Louis, MO, submitted the DAABD case to the Commander, U.S. Total Army Personnel Command, Alexandria, VA.  The Director stated that the initiating officer had reviewed the applicant's rebuttal and concurred with a continuation of this case. 

15.  On 12 April 2001, a DAADB convened under the provisions of Army Regulation 600-8-24 to determine if the applicant demonstrated significant misconduct, moral or professional dereliction, or substandard performance of duty.  The DAADB recommended the applicant not be referred to the CG, U.S. Army Reserve Personnel Command, for elimination but rather be honorably released from active duty.  

16.  On 26 July 2001, by memorandum, she was notified that she had been considered for promotion to MAJ by the 2001 DA RCSB that convened on 6 March 2001; however, she was not selected.  Additionally, she was advised that as a result of her second non-selection, she would be discharged in accordance with Title 10, U.S. Code, section 13504(a) and/or Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) unless she was eligible for and requested a transfer to the Retired Reserve.

17.  On 11 October 2001, the Deputy Assistant Secretary (Army Review Boards) approved the DAADB proceedings and ordered the applicant released from active duty with an honorable characterization of service.

18.  On 18 October 2001, the U.S. Army Reserve Personnel Command,
St. Louis, published Orders C-10-701732, ordering her release from active duty, effective 1 January 2002, and assignment to the USAR Control Group (Reinforcement).  She was also attached to the U.S. Army Transition Center, Fort Irwin, CA, for out-processing.

19.  During the month of November 2001, she received a change of rater OER that covered the rating period from 6 August 2001 through 30 November 2001.  The OER shows the following entries:

	a.  In Part IVc, she was on a medical profile and she did not take an Army Physical Fitness Test but she met the height and weight standards.

	b.  In Part Va, the rater placed an "X" in the "Satisfactory Performance - Promote" block and entered appropriate comments in Part Vb. 

	c.  In Part VIIa, the senior rater placed an "X" in the "Fully Qualified," rated her "Center of Mass," and entered appropriate comments.

20.  She was honorably separated on 1 January 2002 in accordance with Army Regulation 600-8-24, paragraph 2-41, by reason of non-selection for promotion.  The DD Form 214 she was issued shows she completed 6 years, 4 months, and 5 days of creditable active service during this period.

21.  On 11 September 2002, the U.S. Army Reserve Personnel Command,
St. Louis, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified her that she had completed the required years of qualifying service and she would be eligible for retired pay on application at age 60.

22.  On 1 May 2003, the U.S. Army Reserve Personnel Command, St. Louis, published Orders C-05-312124 transferring her to the Retired Reserve, effective 1 May 2003.  Her ARPC (Army Reserve Personnel Command) Form 249-E (Chronological Statement of Retirement Points) shows she completed 20 qualifying years toward non-regular retirement.  

23.  She submitted:

	a.  A report of medical board [not the equivalent of a medical evaluation board (MEB) under the Army physical disability evaluation system (PDES)] from the Naval Medical Center, San Diego, CA which shows she was referred to that center on 7 November 2001 for a psychiatric evaluation at the request of the Mental Health Department, Fort Irwin.  Her chief complaints centered around her dissatisfaction with her chain of command, her unit, and with the Army in general. During the evaluation, she reported having nightmares, angry feelings, irritability, and paranoia toward what she perceived as conspirators in her unit.  Her psychological testing showed no major diagnosis.  Her symptoms were defined primarily as a reaction to work-related dissatisfaction.  Her final diagnosis was that of a moderate depressive disorder, not otherwise specified and without psychotic features.  Her diagnosis had manifested as a depressed mood with decreased interest in pleasure and most activity, with initial sleep difficulties, as follows:

* Axis I:  Mild to moderate PTSD (Existed Prior to Enlistment) 
* Axis II:  Passive-aggressive narcissistic personality traits
* Axis III:  Stress-related headaches and low back pain (arthritic)
* Axis IV:  Moderate to severe, indicated by recent loss of child

The military physician opined she suffered from a mild to moderate psychiatric disorder and she was considered not fit for duty from a psychiatric perspective.  She was considered fully competent and did not constitute a danger to herself or others and was mentally capable of handling her financial affairs.  He recommended an adequate period of observation and evaluation.  

	b.  An Admission/Registration Form at the San Pedro Peninsula Hospital, dated 21 November 2001.  She was brought in to the hospital in military police custody after an altercation on a military base in a doctor's office.  She reported that she was pepper-sprayed and taken into custody.  She was assessed for an acute altered mental status, burning in her eyes, abrasion or contusion to her buttocks, and psychiatric illness.  She was discharged on 24 November 2001.

	c.  Nurse practitioner outpatient note related to the applicant's left arm pain and history of family cardiac disease, dated 18 November 2009.

	d.  Mental health attending note for depression and PTSD, dated 25 March 2003.

	e.  Physician emergency department notes for headaches, dated
25 December 2007.
	f.  VA authorization for a psychological evaluation, dated 14 June 2006.

	g.  Nurse practitioner outpatient notes for the applicant's facial pain, dated
25 March 2004.

	h.  Nurse practitioner outpatient notes for the applicant's recurrent rash, dated 19 December 2003.

	i.  VA Consult for social work, dated 12 April 2002. 

j.  VA reports regarding left and right foot pain, dated 19 January 2010.

	k.  VA rating decision which shows she was awarded service-connected disability compensation for a depressive disorder, arthritis low back pain, hallux left/right foot, headaches, residual of head injury, cyst to left wrist, and left ankle condition, dated 3 September 2002.  

24.  Army Regulation 600-8-24 prescribes policies and procedures governing transfer and discharge of Army officer personnel.  Paragraph 2-31 provides for the rules for processing involuntary release from active duty by the DAADB.  It states, the DAADB (qualitative) is the Army's tool for ensuring that only an RC officer who consistently maintains high standards of performance, efficiency, morality, and professionalism is permitted to serve on active duty.  Approval authority to release or retain an officer under this paragraph is the Secretary of the Army or his or her designated representative.  His or her decisions are final.  RC officers may be considered by a DAADB to determine if the officer's manner of performance, degree of efficiency, or misconduct constitutes consideration for involuntary separation.  Files referred to the DAADB will be identified according to various reasons such evidence of a significant act or condition of misconduct or moral or professional dereliction, degree of efficiency, manner of performance, the presence of unfavorable information, those who demonstrate significant acts or conditions of misconduct or moral or professional dereliction (conduct unbecoming an officer).

25.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

26.  Army Regulation 635-40, paragraph 5-31, 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 reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

27.  Army Regulation 635-40, paragraph 4-4, provides that a commissioned or warrant officer will not be referred for disability processing instead of elimination action (administrative separation) that could result in separation under other than honorable conditions.  Officers in this category who are believed to be unfit because of physical disability will be processed simultaneously for administrative separation and physical disability evaluation.  Commanders exercising general court-martial authority will ensure that the foregoing actions processed together are properly identified and cross-referenced.  The administrative separation will be forwarded to the Commander, U.S. Army Human Resources Command (HRC).  The Commander, HRC will refer the entire file, including both courses of action, to the Office of the Secretary of the Army (SA).  The SA will decide the proper disposition of the case.

28.  Army Regulation 635-40, paragraph 3-2b, provides for retirement or separation from active service.  This provision of regulation states 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. 

29.  Paragraph 3-4 of Army Regulation 635-40 states that under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line of duty (LD) criteria to be eligible to receive retirement and severance pay benefits:  the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

30.  DOD Instruction (DODI) 1332.38 implements policy, assigns responsibilities, and prescribes procedures under References (a) and (b) for retiring or separating Service members because of physical disability, making administrative determinations for members with service-incurred or service-aggravated conditions; and authorizing a fitness determination for members of the Ready Reserve.  DODI 1332.38, section E3.P3.4, states that determining whether a member can reasonably perform his or her duties includes consideration of:

	a.  Common Military Tasks:  Duties, for example, whether the member is routinely required to fire his or her weapon, perform field duty, or to wear load bearing equipment or protective gear.

	b.  Physical Fitness Test:  Whether the member is medically prohibited from taking the respective Service's required physical fitness test. 

	c.  Deployability:  When a member’s office, grade, rank or rating requires deployability, whether a member’s medical condition(s) prevents positioning the member individually or as part of a unit with or without prior notification to a location outside the Continental United States. 

	d.  Special Qualifications:  For members whose medical condition causes loss of qualification for specialized duties, whether the specialized duties comprise the member's current duty assignment or the member has an alternate branch or specialty, or whether reclassification or reassignment is feasible.

31.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

32.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

33.  Title 38, U.S. Code, sections 1110 and 1131, permits the DVA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher DVA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 

34.  Title 10, U.S. Code, section 14504 provides that a CPT of the Reserve Active-Status List who has failed of selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall be separated not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time.

35.  Army Regulation 135-175 (Separation of Officers), in pertinent part, prescribes the policies and procedures for the discharge of Reserve officers.  This regulation specifies that an officer in the grade of CPT, who has completed his/her statutory military service obligation, will be discharged for failure to be selected for promotion after a second consideration by an RCSB, with or without the officer's consent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and her counsel contend her involuntary separation should be set aside and that she should be retired by reason of disability with entitlement to back pay and allowances.  

2.  With respect to her discharge from active duty, the evidence of record shows, while in the AGR program, the applicant displayed acts of misconduct or moral or professional dereliction, a negative degree of efficiency or manner of performance, and the presence of unfavorable information, as evidenced by a referred OER and two GOMORs.  Accordingly, her file was referred to a DAADB. The DAADB recommended her honorable release from active duty.  Accordingly, she was honorably released from active duty on 1 January 2002.  There is no error or injustice.  There is no evidence that the misconduct was the result of  PTSD or any other medical condition. 

3.  With respect to her discharge from the USAR, when she was released from active duty she was transferred to the USAR.  She was twice considered for promotion to MAJ but she was not selected on either occasion.  As such, as required by law and regulation, she was required to be discharged.  However, since she qualified for a transfer to the Retired Reserve, she was accordingly transferred to the Retired Reserve on 1 May 2003.  Again, there is neither an error nor an injustice. 

4.  With respect to her medical condition, a Soldier is considered unfit when the evidence establishes that the Soldier is unable to reasonably perform the duties of his/her office, grade, rank, or rating.  This is not the case here.  The applicant's OER during the period 6 August 2001 through 30 November 2001 clearly shows she continued to perform the duties required of her grade or office with successful results.  Although her OER listed a profile, there is no indication her profile was permanent in nature.  She met the height and weight standards, she was rated fully capable/successful, and she was fully able to perform the duties of her grade and/or specialty.

5.  Although reference is repeatedly made to the report of medical board as an "MEB," it is not the equivalent of an MEB and is more comparable to a mental status evaluation.  It was accomplished in one sitting and does not include an assessment or evaluation of all the patient's maladies.  This was a psychiatric fit for duty evaluation.  That board concluded that the applicant was fit for duty from a psychiatric perspective at the time.  In an Army clinic this would have resulted in a follow-up appointment, a recommendation for treatment, a possible temporary profile, and other actions.  This is not a finding that the applicant could not perform the duties of her specialty or grade.  Such a conclusion would have required a significantly more thorough evaluation and input for the applicant's commander and/or supervisor.  

6.  Counsel’s contention that an "MEB found her unfit for military service and referred her to a PEB" is wrong on all three counts:

* The applicant did not undergo an MEB
* The Navy board did not opine that the patient was unfit for military service
* The Navy board did not refer the applicant to a PEB

7.  Because of substandard performance of duty (among other issues) the applicant was honorably separated from active service on 1 January 2002.  The DAADB specifically decided not to refer the Soldier to the Commanding Officer, Army Reserve Personnel Command for elimination.  The Soldier was returned to the Active Reserve and she continued to serve until she received her 20-year letter about 9 months later.  She was eventually transferred to the Retired Reserve separated by the Reserve after her two time non-selection for promotion to MAJ, over one year after release from active duty.

8.  Furthermore, the psychiatric evaluation she underwent on 7 November 2001 centered on her dissatisfaction with her chain of command, her unit, and with the Army in general.  During the evaluation, she reported having nightmares, angry feelings, irritability, and paranoia toward what she perceived as conspirators in her unit.  Her psychological testing showed no major diagnosis.  Her symptoms were defined primarily as a reaction to work-related dissatisfaction.  Her final diagnosis was that of a moderate depressive disorder, not otherwise specified and without psychotic features.  Her diagnosis had manifested as a depressed mood with decreased interest in pleasure and most activity, with initial sleep difficulties, as follows.  Nowhere does this report show her condition would have warranted referral to a PEB.  

9.  The various medical documents she provided show she was seen or evaluated in 2008, 2009, or 2010, years after her discharge.  However, nothing in his medical records indicates she was diagnosed with an injury or disease at the time of her discharge that would have warranted her entry into the PDES.  She was not diagnosed with a medical condition that would have warranted her entry into the PDES.  Because all the evidence of record shows she was fully capable of performing her duties up until her discharge, there was no reason to consider her for entry into the PDES. 

10.  Further, the reason for her separation from active duty (two time non-select) was not related to any medical conditions (PTSD) she had been diagnosed with. Although she suffered the loss of a child and although she may have encountered difficulties at her unit, at the time of her two-time non-selection, 
she did not suffer from a mental disease or defect that impaired her ability to appreciate the nature and quality of the wrongfulness of her conduct.  Nevertheless, her dissatisfaction with her chain of command is not considered as a compelling reason to proceed with PDES processing or an MEB/PEB.  

11.  The nature of the applicant's misconduct (insubordinations, conduct unbecoming an officer, disrespect, profane language, and a loud abusive tone) had no conclusive relation to the medical condition she claims.  She has presented no compelling evidence that shows other circumstances warranted her disability processing over her initial discharge from active duty or subsequent transfer to the Retired Reserve. 

12.  With respect to the VA rating decision, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) and affects the individual's civilian employability.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.

13.  Finally, the applicant's delay in filing essentially makes it impossible now to assess her conditions back in 2002.  This was also true in 2007 when she employed her counsel. 

14.  The applicant has failed to show through the evidence submitted or the evidence of record that she was medically/physically unfit at the time of separation and should have been processed for separation due to physical disability.

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)                                         AR20100020167



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ABCMR Record of Proceedings (cont)                                         AR20100020167



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