BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100025919 


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 reconsideration of his request for correction of his records to show he was medically retired from active duty.

2.  The applicant states that the reason for his discharge shown in item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) should be changed from "condition, not a disability" to "disability retirement" based on the Department of Veterans Affairs (VA) disability ratings he has received since his discharge from the U.S. Army.

3.  The applicant provides his Army mental health evaluations, VA letter and rating decision, and two published articles.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The applicant lists the American Legion, Washington, DC, on his application as counsel.

2.  Counsel offers no statement in support of the application.

3.  Counsel offers no documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090010604, on 22 December 2009.

2.  The applicant enlisted in the Regular Army (RA) and entered active duty for a period of 4 years on 6 July 2004.  Upon completion of training he was awarded military occupational specialty 88M (Motor Transport Operator) and the highest rank he attained was private first class (PFC)/pay grade E-3.  The applicant served in Iraq in support of Operation Iraqi Freedom from 6 December 2004 to 26 March 2005.

3.  A DA Form  3822-R (Report of Mental Status Evaluation), dated 1 December 2005, shows the Division Psychologist, 82nd Airborne Division, Fort Bragg, NC, conducted a clinical interview of the applicant.  The psychologist's diagnosis of the applicant was, "Axis I:  Cognitive Disorder, NOS [Not Otherwise Specified], Adjustment disorder with Mixed Disturbance of Emotions and Conduct; Axis II:  no diagnosis; Axis III:  none."  The psychologist recommended impatient hospitalization treatment.  It was recommended to the applicant's command that the applicant be processed for a medical board or administrative separation under the provisions of [Army Regulation 635-200 (Personnel Separations - Enlisted Separations)] paragraph 5-17 [Other designated physical or mental conditions], if his primary care manager did not determine that the applicant's case warranted a medical board.

4.  A Womack Army Medical Center, Fort Bragg, NC, memorandum, dated
5 December 2005, shows the applicant underwent a mental status evaluation by the Medical Director, Inpatient Psychiatry.  The examining psychiatrist found the applicant suffered from a cognitive disorder, not otherwise specified, and adjustment disorder with mixed disturbance of emotions and conduct.  He also found the applicant had the mental capacity to participate in the proceedings, and that he was mentally responsible and able to distinguish right from wrong.  He concluded the applicant's condition met the criteria set forth in Army Regulation 635-200, paragraph 5-17, for an administrative separation.

5.  On 6 December 2005, the applicant was counseled by his first sergeant regarding his recommendation that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 5-17, for an Other Designated Mental Condition and that he be issued an honorable discharge.  The applicant agreed with the counseling.

6.  The company commander notified the applicant that he was initiating action to separate him for an Other Designated Physical or Mental Condition under the provisions of Army Regulation 635-200, paragraph 5-17, based on his diagnosed cognitive disorder and adjustment disorder with mixed disturbance of emotions and conduct.  The applicant was advised of his rights and of the separation procedures involved.  The commander also informed the applicant he intended to recommend he receive an honorable discharge.

7.  On 15 December 2005, the applicant underwent a separation medical examination.  The DD Form 2808 (Report of Medical Examination) documenting this examination lists no disabling conditions that would have supported the applicant's separation/retirement processing through medical channels.  The examining physician determined the applicant was qualified for service.

8.  On 11 January 2006, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, its effects, of the 
rights available to him, and of the effect of any action he took to waive any of his 
rights.  The applicant indicated he understood he would be given an honorable discharge and elected not to submit statements in his own behalf.

9.  The immediate and intermediate commanders recommended approval of the applicant's separation under the provisions of Army Regulation 635-200, paragraph 5-17, with an Honorable Discharge Certificate.

10.  On 31 January 2006, a legal review of the applicant's separation packet was completed by an administrative law attorney, who found the packet legally sufficient under the provisions of Army Regulation 635-200, paragraph 5-17.

11.  The applicant's record does not contain a copy of the separation authority's approval memorandum.  However, his records do contain a duly constituted
DD Form 214 that shows he was discharged on 24 February 2006.

12.  The applicant's DD Form 214 shows he entered active duty this period on
6 July 2004 and he was honorably discharged on 24 February 2006 under the provisions of Army Regulation 635-200, paragraph 5-17.  Item 28 shows the entry "Condition Not A Disability."  The applicant had completed 1 year,
7 months, and 19 days of active military service.

13.  Subsequent to his discharge from the Army, the VA determined that the applicant's medical condition of "residuals of closed head injury to include cognitive disorder and post concussive headaches (also claimed as post-traumatic stress disorder)" was related to his military service, and service connection was granted with an overall or combined rating of 30%, effective
25 February 2006.

14.  In support of his request for reconsideration, the applicant provides the following new evidence:
   a.  St. Petersburg VA Regional Office, St. Petersburg, FL, letter, dated
26 January 2010, and VA Rating Decision, dated 22 January 2010, that notified the applicant of the VA's decision on his Notice of Disagreement.

       (1)  It shows the VA determined that the applicant's medical condition of "residuals of closed head injury to include post concussive headaches (previously residuals of closed head injury to include post cognitive disorder and concussion headaches)" was assigned a new rating of 40%, effective 23 October 2008.  The reason for the VA's decision was that the VA Rating Schedule (VARSD) was updated, effective 23 October 2008, to change the evaluation criteria and name of Diagnostic Code 8045 to "residuals of traumatic brain injury  (TBI)" and now a mild TBI can now be evaluated up to 40% based on subjective symptoms alone.

       (2)  It also shows the VA determined the applicant's medical condition of "post traumatic stress disorder" was related to his military service, so service connection was granted at 30%, effective 1 December 2009 (the date it was first established by medical evidence).  The reason for the VA's decision was that the VARSD was changed, effective 23 October 2008, to allow for disabilities which were determined to be residuals of a brain injury to be evaluated separately.

       (3)  The VA granted the applicant an overall or combined rating of 60%, effective 1 December 2009.

   b.  A portion of an article from the ArmyTimes, January 2008, "TBI task force identifies shortfalls in care - Mild injuries need more attention experts say," that cited a number of gaps in services and care for those suffering TBI.  The applicant highlighted specific portions or the article, as follows:  "many of the mild cases are overlooked" … "headache, sleeplessness or grogginess, has been harder to detect and catalog" … "documentation of TBI was not standardized across the Army" … and "[which places an undue burden on family] members to play the role of record keeper, communicator, advocate, and case manager."

   c.  A document titled "Appeals - to obtain Military Medical Retirement status" that discusses the establishment of a new Physical Disability Board of Review (PDBR) to review disability ratings of wounded warriors and provide another avenue of administrative recourse for wounded veterans.
   
       (1)  It states that any service member may have his or her case reviewed by the PDBR if he or she meets certain conditions.  The member must have been separated from the United States Armed Forces between 11 September 2001 and 31 December 2009, due to unfitness for continued military service resulting from a physical disability under Title 10, U.S. Code, chapter 61.
       (2)  It states, "[a]dditionally, the member must have received a combined disability rating of 20 percent or less, and have been found not eligible for retirement [article's emphasis]."

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-17 contains the policy for separating members for other designated physical or mental conditions not amounting to disability.  It states, in pertinent part, that members may be separated under these provisions for disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.

16.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  The source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, enlistment/ reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket, or any other document authorized for filing in the Official Military Personnel File. The instructions for item 28 state to enter the narrative reason for separation as shown in Army Regulation 635-5-1 based on the regulatory or other authority.

17.  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.  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 his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

18.  Title 38, U.S. Code, sections 1110 and 1131, 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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his request for correction of his records to show he was medically retired from active duty should be reconsidered based on the VA disability ratings he has received since his discharge from the U.S. Army.

2.  The examining Army psychiatrist found the applicant suffered from a cognitive disorder, not otherwise specified, and adjustment disorder with mixed disturbance of emotions and conduct.  The psychiatrist concluded the applicant's condition met the criteria for administrative separation under the provisions of Army Regulation 635-200, paragraph 5-17.
 
3.  There is no evidence that the applicant suffered from a disabling condition at the time of his discharge that would have warranted his separation processing through medical channels (i.e., the PDES).  In fact, the examining physician who conducted the applicant's separation medical examination found the applicant medically qualified for service with no unfitting medical condition.

4.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 5-17, based on an Other Designated Physical or Mental Condition, was in compliance with all requirements of law and applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the narrative reason entered in item 28 of his DD Form 214 is appropriate and correct based on the authority for his discharge.

5.  By Army regulation, the mere presence of impairment does not, in and 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 his or her office, grade, rank, or rating.

6.  Conversely, 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.  As the evidence of record shows in the applicant's case, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards applied by military medical authorities at the time of his discharge.  As a result, the VA is the appropriate agency to provide further medical treatment and disability compensation for service-connected medical conditions that were not found permanently disabling at the time of his discharge.

7.  In view of all of the foregoing, there is no basis for granting the applicant's request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090010604, dated 22 December 2009.




      _______ _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)                                         AR20100025919



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ABCMR Record of Proceedings (cont)                                         AR20100025919



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