BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100029208 


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 that his discharge be changed to physical disability.

2.  The applicant states a serious mental illness manifested while he was on active duty.  The Department of Veteran Affairs (VA) rated it as 100 percent disabling retroactive to his date of discharge.

3.  The applicant provides approximately 45 pages of civilian medical and court documents and VA rating decisions to substantiate his case.

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 enlisted in the Regular Army on 27 April 2006.  During the enlistment process he completed a DD Form 2807 (Report of Medical History) in which he indicated that he had no history of any mental or psychiatric problems.

3.  The applicant was admitted to the psychiatric ward on 1 September 2006 for depression.

4.  A 20 September 2006 psychiatric evaluation found the applicant's behavior passive, he was fully alert and oriented but displayed a depressed mood.  His thinking was clear but slowed, his thought content normal, and his memory fair.  In the psychiatrist's opinion the applicant had the capacity to participate in separation proceedings, was mentally responsible, and did not require a medical board.  

5.  The psychiatrist remarked:

Soldier has symptoms consistent with depression associated with bereavement due to the accidental death of his fiancé during basic  training.  That along with other unforeseen adverse family events since that time have led to further decomposition of this Soldier's mental health, duty performance and interpersonal interactions.  He has already had one suicide attempt during training and is now hospitalized a few weeks later for suicidal ideation.  Although he may have proved a productive, retainable Soldier at one time; PV2 [applicant] cannot fulfill his mission in his current state, and even a generous trial of treatment and therapy would not move him back to his pre morbid level of functioning anytime soon.  He is strongly recommended for a chapter 5-17 separation from the military due to his condition of adjustment disorder (severe), and for the good of the military as well.  He should follow-up with bereavement counseling and the R/R until he's separated and continue his medications.  No access to weapons or ammunitions.  Absolutely non-deployable.  No active suicidal or homicidal intent on discharge.

6.  On 25 September 2006, favorable actions were suspended due to consideration for elimination.  

7.  The applicant was again admitted to the psychiatric ward on 2 October 2006.

8.  The applicant was notified of initiated separation action under the provisions of Army Regulation 635-200, paragraph 5-17 for Other Designated Physical or 


Mental Conditions.  This was based upon the previous diagnosis.  The applicant consulted with counsel, declined to submit written statements in his own behalf, and requested a copy of the documents.  

9.  The company commander recommended the applicant be separated with an honorable discharge and the separation authority approved the recommendation and so directed.  On 26 October 2006, the applicant was separated under the provisions of Army Regulation 635-200, paragraph 5-17 for Other Designated Physical or Mental Conditions.

10.  The documents submitted by the applicant consist of:

	a.  20 November 2007 rating decision by the VA – 50 percent service connected, Gulf War Era incurred, disabled due to recurrent major depressive disorder and 10 percent due to hypothyroidism.

	b.  20 January 2008 note from the applicant to the VA stating that they did not have all the records when the rated him and submitted the following:

		(1)  9 November 2007 county hearing considering whether the applicant, who had been detained in a hospital mental ward, should be involuntarily committed.  The court appointed physician stated the applicant related abuse by supervisors in the Army, "his platoon sergeant had fired a gun past his head," and harassment and physical attacks by his fellow Soldiers.  He reported a voluntary commitment in July 2007 and a drug overdose in response to an argument with his girlfriend.  The applicant was released after agreeing to abide by his treatment/medication plan; 

		(2)  a 26 November 2007 civilian Discharge Summary and Disposition Plan – he was hospitalized for 5 days for suicidal ideation – he had an argument with his mother, but denied any real intent – he admitted a history of PTSD and depression – discharge diagnosis was bipolar disorder with PTSD.

	c.  On 12 February 2008 the VA increased the 50 percent rating to 70 percent and  granted individual unemployment and non-service connected pension, effective as of 27 October 2007. 

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5–17 (Other designated physical or mental conditions), states that specified commanders may approve separation under this paragraph on the 


basis of other physical or mental conditions not amounting to disability (Army 
Regulation 635–40) and excluding conditions appropriate for separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty.  These include several enumerated conditions 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.  

12.  Army Regulation 40-501 (Standards of Medical Fitness) states that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  It also states that situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability but may be the basis for administrative separation if recurrent and causing interference with military duty.

13.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

14.  Army Regulation 635-40 states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples include manifestation of symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) that will be accepted as proof that the disease existed prior to entrance into active military service.  

15.  Title 38, U.S. Code, sections 310 and 331, 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states a serious mental illness manifested while he was on active duty.  The VA rated it 100 percent disabling retroactive to his date of discharge.

2.  The applicant enlisted in April 2006.  In September 2006, a psychiatric evaluation found that he displayed clear but slowed thinking, but his thought content normal and his memory fair.  In the psychiatrist's opinion the applicant was mentally responsible, he was diagnosed with an adjustment disorder, and he did not require a medical board.  He was properly discharged administratively rather than through medical channels.

3.  It is presumed that the adjustment disorder diagnosis was made by competent military medical authority.

4.  It is acknowledged that the applicant was diagnosed by the VA primarily with bipolar disorder and major depressive disorder (possibly related to his bipolar disorder) and also with PTSD.  However, even if the Army psychiatrist had diagnosed him with bipolar disorder, based upon accepted medical principles it is unlikely that such a diagnosis would have been found to have been incurred while he was entitled to basic pay.

5.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.   Under VA policies, that agency can be more lenient in determining if a medical condition is service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

6.  In view of the foregoing there is no basis for granting the applicant's 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)                                         AR20100029208





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ABCMR Record of Proceedings (cont)                                         AR20100029208



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