IN THE CASE OF:	  

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20100026390 


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 a medical retirement.

2.  The applicant states:

* He should have been medically retired from the Army instead of chaptered out
* He has several medical conditions that were caused by his time/service in the Army
* Getting chaptered out with no disability or severance pay is unjust
* He was discharged from the Army under chapter 5-17 for anxiety and depression which were caused by the funeral details he performed
* He already had a severe case of obstructive sleep apnea and was going through the disability process
* His chain of command stopped the medical board process and chaptered him out under paragraph 5-17 so he wouldn't get any severance pay from the Army
* They told him this verbally 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Service personnel records
* Medical records
* Emails  

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 2 July 2008 for a period of 3 years and 
17 weeks.  He completed his training and was awarded military occupational specialty 13B (Cannon Crewmember).

2.  In March 2009, he was diagnosed with sleep apnea.  Later that year he was flagged at SRP [Soldier Readiness Processing] because he did not meet criteria for deployment to CENTCOM AOR [U.S. Central Command Area of Responsibility].  

3.  He was referred to a Medical Evaluation Board but this was discontinued by the Chief of Pulmonary Medicine.  He was adequately controlled with CPAP [Continuous Positive Airway Pressure] and met retention requirements.  The Chief of Pulmonary Medicine changed his profile from a permanent "3" to a permanent "2" for sleep apnea in May 2009.  Because of a complaint of excessive daytime somnolence, he was referred for evaluation by a different sleep study center.  The findings at that time (January 2010) were not as severe as previously documented.  His CPAP setting was decreased.  Additionally, his apnea hypopnia index was within the range that was waivable for deployment to CENTRCOM AOR.  His prior compliance with earlier treatment was questioned and he was asked to provide a download of his monitoring.  Although this was discussed on more than one occasion, there is no evidence he provided this evidence he was compliant with treatment. 

4.  Service records indicate he had depression prior to entry.  The record shows he was not unfit due to depression.  He took medications sporadically.  His mental status evaluation, dated 30 November 2009, states his depression "does not rise to level that would render this Soldier unfit for continued service …"  it also states "there is no psychiatric disease or defect which warrants disposition through medical channels." 

5.  A memorandum from the Lead Physical Evaluation Board Liaison Officer, at Carl R. Darnall Army Medical Center, Fort Hood, TX, dated 13 July 2010, states the Medical Retention Determination Point Review on the applicant was terminated.  The memorandum indicates the applicant's behavioral health condition was inadvertently started by "R&R" and it should have been a chapter 
5 since he had the condition prior to joining the Army.  The memorandum also states his secondary condition (sleep apnea) was considered "to be fit for duty" and he was deployable.   

6.  The facts and circumstances surrounding his discharge action are not contained in the available records.  
7.  The mental status evaluation conducted prior to his separation is not available. 

8.  His discharge proceedings state he was diagnosed with a depressive disorder on 30 July 2010.

9.  On 10 August 2010, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 5, paragraph 5-17, for other designated physical or mental conditions.  His unit commander cited that he had been diagnosed with a depressive disorder on 30 July 2010 and the extent of the condition was so severe his ability to function affectively in a military environment was significantly impaired.

10.  On 13 August 2010, his unit commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 5-17.  

11.  On 18 August 2010, the separation authority approved the recommendation for separation and directed the issuance of an honorable discharge.  

12.  On 31 August 2010, he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of a physical condition, not a disability.  He had completed 2 years, 1 month, and 29 days of creditable active service.  

13.  He provides numerous medical records pertaining to his sleep apnea condition. 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-17 sets the policy and prescribes procedures for separating members on the basis of other physical or mental conditions not amounting to a disability that potentially interfere with assignment to or performance of duty.  Such conditions may include, but are not limited to, chronic airsickness or seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, and other 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.

15.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.


DISCUSSION AND CONCLUSIONS:

1.  He contends he should have been medically retired from the Army.  However, he did not have an unfitting condition when he was separated for a condition, not a disability.  

2.  His depression was manageable and was noted to meet retention standards.  He had a permanent "2" profile for Obstructive Sleep Apnea.  His sleep apnea met retention standards and was within parameters that would allow deployment to CENTCOM AOR (Iraq, Afghanistan).  Therefore, there is no basis for a medical retirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.




      _______ _   _______   ___
               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)                                         AR20100026390



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ABCMR Record of Proceedings (cont)                                         AR20100026390



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