IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100020209 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically discharged for disability instead of honorably discharged by reason of a "condition - not a disability." 

2.  The applicant states his unit failed to recognize that he aggravated his existing back condition at the L-5 and S-1.  He was rated as disabled by the Social Security Administration (SSA) in 2005.  He was involuntarily mobilized for the War on Terrorism.  After his discharge, he researched the issue and discovered that his unit grossly neglected his rights.  He was not afforded the opportunity to be considered by a medical evaluation board (MEB) or referral to a physical evaluation board (PEB).  

3.  The applicant provides:

* his DD Form 214
* three DA Forms 3349 (Physical Profile)
* a self-authored chronology of events
* his SSA disability letter

CONSIDERATION OF EVIDENCE:

1.  Having had prior active service in the U.S. Air Force and the Army National Guard (ARNG), the applicant's records show he enlisted in the U.S. Army Reserve (USAR) on 16 September 2003.  A copy of his enlistment contract is not available for review with this case.  He held military occupational specialty 88N (Traffic Management Coordinator).  

2.  On 1 February 2007, he was ordered to active duty in support of Operation Enduring Freedom.  He was assigned to Headquarters and Headquarters Company, 5th Armored Brigade, Fort Carson, CO, with duty at Fort Bliss, TX.

3.  During October 2007, the applicant complained of physical and mental health issues.  He appeared to have been under extreme stress for several weeks and during a closed-door counseling session with his sergeant he verbally erupted and made threatening statements against both himself and his superiors.  Following this action, he was escorted to speak with the chaplain and subsequently referred to the mental health clinic for evaluation.

4.  On 6 December 2008, he underwent a mental status evaluation at Fort Bliss.  The military psychiatrist found him to have had a normal behavior, fully alert and oriented with clear thinking and normal thought content.  He had the capacity to understand and participate in proceedings and he met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness).  He was diagnosed as being over-stressed in his position.  The stress affected his mood and behavior in a way that was not conducive to good mental health.  The military psychiatrist recommended reassigning the applicant to a different position.

5.  On 4 January 2008, he again underwent a mental status evaluation at Fort Bliss.  He was again found to have had a normal behavior, fully alert and oriented with clear thinking and normal thought content.  He had the capacity to understand and participate in proceedings and met retention standards of Army Regulation 40-501.  He was diagnosed with hypertension and having a mood disorder not otherwise specified (bipolar disorder was ruled out).  The military psychiatrist stated:

	a.  The applicant was previously hospitalized at inpatient psychiatry for safety concerns.  He related a history of recurrent depressive symptoms and mood lability which had been exacerbated by occupational, family, and financial stressors.  His mood issues were incompatible with military service. 

	b.  He recommended the applicant be discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 5-17, for other physical or emotional condition.  He was mentally competent and he was not in need of an MEB action.

6.  On 3 March 2008, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him for other designated physical or mental conditions.  The specific reason was the applicant's history of recurrent depressive symptoms and mood liability.  He recommended an honorable discharge.

7.  The applicant acknowledged receipt of the separation notification memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He indicated he understood that as the result of issuance of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws.  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

8.  On 17 March 2008, his immediate commander initiated separation action against the applicant under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of his diagnosed history of recurrent depressive symptoms and mood lability.  The commander recommended the applicant receive an honorable discharge.

9.  On 21 March 2008, the intermediate commander recommended approval of the discharge with an honorable character of service.

10.  On 3 April 2008, a military attorney reviewed the separation packet and found it legally sufficient.

11.  On 10 April 2008, by memorandum, an official at the U.S. Army Human Resources Command, Alexandria, VA, indicated that the discharge action was approved and the applicant would be discharged no later than 22 May 2008.

12.  The applicant's DA Forms 2166-8 (NCO [Noncommissioned Officer] Evaluation Reports [NCOER]) for the periods 16 November 2005 through
15 November 2006, 6 January 2007 through 6 July 2007, and 7 July 2007 through 26 October 2007, shows he was rated as either "excellent" or "success" in all five rating areas.  Comments included "limitless potential; needs to be placed in position of leadership responsibility," "technically and tactically proficient," "has been a strong asset to the S-3 training and operation staff," and "recommend him for promotion with the best of his peers."

13.  He was honorably discharged on 14 April 2008 under the provisions of Army Regulation 635-200, paragraph 5-17, based on a condition, not a disability, with the separation code of "JFV."  This form also shows he completed 1 year, 2 months, and 14 days of net active service during this period with entitlement to separation pay in the amount of $21,233.16.

14.  His available medical records do not indicate that he suffered from an injury, illness, or any medical condition that would have warranted his entry into the Army's physical disability evaluation system (PDES).

15.  He submitted the following documents:

	a.  three DA Forms 3349, temporary profile, for back pain, chronic back pain, and lower back pain.

	b.  an SSA rating decision, dated 16 August 2006, awarding him disability benefits beginning in July 2005. 

	c.  a self-authored chronology of his enlistment in the ARNG and an injury resulting from a fall, his enlistment in the USAR and subsequent mobilization, military service, problems with his financial accounts, mother's illness, mental breakdown, psychiatric hospitalization, attempts in making medical appointments, meetings with legal services personnel, challenges with the Department of Veterans Affairs (DVA), and the conclusion that the Army did not provide him with the proper procedure and did not recognize his broken back.

16.  On 24 February 2009, subsequent to his petition to the Army Discharge Review Board (ADRB), the ADRB determined his discharge was proper and equitable and voted to deny his requested relief.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.  It provides for MEBs which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501.  Paragraph 3-1 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501, chapter 3.  These standards include guidelines for applying them to fitness decisions in individual cases.  These guidelines are used to refer Soldiers to an MEB.

18.  Army Regulation 40-501 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 (VASRD).

19.  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 at least a
30 percent (%) disability rating percentage.  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%.

20.  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 code to be entered on the DD Form 214. It identifies the SPD of "JFV" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, paragraph 5-17, based on a condition, not a disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was ordered to active duty on 1 February 2007.  His NCOERs show he performed his duties in a successful or excellent manner and he was rated among the best.  There is no evidence in his available medical records that his back pain, documented on his temporary physical profile, rendered him unfit for retention.  

2.  The evidence of record shows he underwent a mental status evaluation that diagnosed him as having recurrent mood disorder not otherwise specified.  He was previously hospitalized at inpatient psychiatry for safety concerns.  He related a history of recurrent depressive symptoms and mood lability which had been exacerbated by occupational, family, and financial stressors.  His mood issues were incompatible with military service. The military psychiatrist specifically stated the applicant was mentally competent and he was not in need of an MEB action and recommended his separation.

3.  Accordingly, his chain of command initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge was reviewed for legal sufficiency.

4.  There is no evidence in the available records and he did not provide sufficient evidence that shows he was diagnosed with a medical condition that would have warranted his entry into the PDES.  Therefore, he never underwent an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, he could not have been issued a medical discharge or separated/retired for physical disability.

5.  An award of a rating by another agency does not establish error by the Army. Operating under different laws and their own policies, the SSA does not have the authority or the responsibility for determining medical unfitness for military service.  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.  Therefore, he is not entitled to the requested relief.

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)                                         AR20100020209



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100020209



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1