IN THE CASE OF:	  

		BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100027713 


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 the separation code and narrative reason for separation shown on her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was discharged due to disability.

2.  The applicant states she was diagnosed with post-traumatic stress disorder (PTSD), which is a disability and, therefore, the reason for her discharge should show she was discharged based on a disability.  She adds the Department of Veterans Affairs (VA) recently granted her service-connection for her disability.

3.  The applicant provides copies of her active duty orders, administrative separation packet, discharge documents, and VA disability rating.

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 had prior honorable active duty enlisted service in the Regular Army from 11 January 1994 through 9 February 1996.  She served in military occupational specialty 63W (Wheeled Vehicle Repairer).

3.  The applicant enlisted in the Army National Guard of the United States (ARNGUS) and Arkansas Army National Guard (ARARNG) on 24 May 2002.

4.  Orders 276-191, issued by the Military Department of Arkansas, Office of the Adjutant General, Camp Robinson, North Little Rock, AR, dated 4 October 2002, ordered the applicant to active duty as a member of her unit in support of Operation Noble Eagle Homeland Defense for a period of 365 days.  On 17 May 2003, the orders were amended for a period not to exceed 24 months.

5.  A DD Form 2808 (Report of Medical Examination), dated 24 April 2003, shows the applicant underwent a separation medical examination.

   a.  Item 42 (Notes) shows the entry, "Date - 5 May 03; To - MEB [Medical Evaluation Board], Sign - [Initials]."

   b.  Item 74a (Examinee/Applicant) shows the physician placed an "X" in the block indicating "Is Not Qualified For Service" and a stamp mark indicating "Chapter ____."

   c.  Item 77 (Summary of Defects and Diagnoses) shows the physician noted the applicant's complaints of:

* seasonal allergies
* chronic sinusitis
* left shoulder pain and numbness
* low back pain
* migraines
* insomnia
* depression
* PTSD (secondary to rape)

	d.  The examining physician placed his signature on the document.

6.  On 1 July 2003, the company commander notified the applicant of her intent to initiate separation action to effect discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 5 (Separation for Convenience of the Government), paragraph 5-17, based on other designated physical and mental conditions.  The reason for the 


commander's proposed action was the applicant had a condition that was not compatible with satisfactory service.  Specifically, she was diagnosed with a disorder manifesting disturbances of perception, thinking, emotional control, or behavior sufficiently severe that the applicant's ability to perform military duties was significantly impaired.  The applicant was advised of her rights and of the separation procedures involved.

7.  On 1 July 2003, the applicant acknowledged she had been afforded the opportunity to consult with appointed counsel, or military counsel of her own choice, and she declined the opportunity.  She acknowledged she was advised of the basis for the contemplated separation action and its effects, and the rights available to her.  The applicant waived her rights in writing, she elected not to submit statements in her own behalf, and she placed her signature on the document.

8.  On 1 July 2003, the immediate commander recommended that the applicant be separated from the U.S. Army under the provisions of Army Regulation
635-200, paragraph 5-17.  The commander's recommendation shows a Report of Mental Evaluation was attached to the separation action.  (The report is not filed in the applicant's military personnel records.)

9.  The separation approval authority's action approving the applicant's separation is not filed in the applicant's military personnel records.

10.  A DD Form 214 shows the applicant entered active duty on 4 October 2002 and she was honorably discharged on 30 July 2003 under the provisions of Army Regulation 635-200, paragraph 5-17.  She completed 9 months and 27 days of net active service this period.  The applicant placed her signature in the appropriate block.  It also shows in:

   a.  item 26 (Separation Code) the entry "JFV" and

	b.  item 28 (Narrative Reason for Separation) the entry "Physical Condition, Not A Disability."

11.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant enlisted in the ARNGUS and ARARNG on
24 May 2002 and she was honorably discharged on 31 July 2003 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26j(1), based on being medically unfit for retention per Army Regulation 40-501 (Standards of Medical Fitness).  She completed 1 year, 2 months, and 8 days of net service this period.
12.  There is no evidence in the applicant's military personnel record that shows she was evaluated under the Physical Disability Evaluation System.

13.  In support of her request, the applicant provides a copy of her VA Rating Decision, dated 24 November 2008, that shows the VA determined the applicant's condition of major depression and PTSD had worsened.  It also shows she was assigned an overall or combined rating of 80 percent (%), effective 31 July 2003 and granted entitlement to the 100% rating, effective
16 March 2007 because she is unable to work due to her service-connected disabilities.

14.  In the processing of this case, on 13 April 2011, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.

	a.  The advisory official recommends disapproval of the applicant's request and found there was no evidence showing an error or injustice in either the characterization or reason for her separation.

	b.  The advisory official noted the applicant was medically examined for an MEB and the signed documentation shows that she was properly counseled regarding the separation action.

	c.  The ARARNG concurs with the NGB advisory opinion.

   d.  The advisory opinion, in pertinent part, cited Army Regulation 635-200, chapter 5, paragraph 5-17, subparagraph (a)(9), as follows:  "[m]edical review of the personality disorder diagnosis will consider whether PTSD, Traumatic Brain Injury (TBI), and/or other comorbid mental illness may be significant contributing factors to the diagnosis.  If PTSD, TBI, and/or other comorbid mental illness are significant factors to a mental health diagnosis, the Soldiers will not be processed for separation under this paragraph, but will be evaluated under the physical disability system in accordance with Army Regulation 635-40 [Physical Evaluation for Retention, Retirement, or Separation]."  (This provision of the Army regulation was effective 17 December 2009.)

15.  On 13 April 2011, the applicant was provided a copy of the advisory opinion for information and to allow her the opportunity to submit comments or a rebuttal.  On 24 April 2011, the applicant provided her response.  She stated that she did not request a review of the character of her service because she received an honorable discharge.  However, she is requesting a change to the narrative reason for her separation based on a review of her military personnel and medical records.  She adds that her company commander did send her for a mental evaluation and she was given a diagnosis of PTSD by the physician.  She asserts it was a disability at the time of her discharge and the VA rating shows her condition has worsened.  She is concerned that the information and evidence she submitted has not been read and requests a formal hearing of her case.

16.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, paragraph 5-17, provides for separation on the basis of other physical or mental conditions not amounting to disability.  When a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.

17.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. 

	a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, 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.

	b.  Table 2-1 (DD Form 214 Preparation Instructions) contains item-by-item instructions for completing the DD Form 214.  It states for:

   	(1)  item 26, enter the proper Separation Program Designator (SPD) code representing the specific authority for separation; and

   	(2)  item 28, enter the narrative reason for separation as shown in Army Regulation 635-5-1 (SPD Codes) based on the regulatory or other authority.

18.  Army Regulation 635-5-1 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 shows SPD Code "JFV" as the appropriate code for Soldiers separated under the provisions of Army Regulation 635-200, paragraph 5-17, based on a condition, not a disability.


19.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the separation code and narrative reason for separation shown on her DD Form 214 should be corrected to show she was discharged due to disability.

2.  Records show the applicant was administered a medical examination at the time of her separation processing and she listed of a variety of chronic illnesses/ complaints.

	a.  There are no medical documents showing that the applicant's PTSD/ Depression was "In Line of Duty."

	b.  There is no evidence the applicant was found to have a medically unfitting condition that qualified her for separation under the provisions of Army Regulation 635-40.  Thus, there was no basis for the applicant to be evaluated under the physical disability evaluation system.

	c.  The examining physician found that administrative separation of the applicant under the provisions of Army Regulation 635-200 was appropriate.

	d.  Thus, the evidence of record refutes the applicant's contention that she should have been separated based on disability.

3.  Records show the applicant's administrative separation under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-17, for other designated physical or mental conditions was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  In addition, the entries for the separation code and narrative reason for discharge that are shown on the applicant's DD Form 214 are appropriate and correct.  Therefore, there is no basis for granting the applicant's request.

4.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

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)                                         AR20100027713



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ABCMR Record of Proceedings (cont)                                         AR20100027713



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