IN THE CASE OF:	  

		BOARD DATE:	  23 August 2011

		DOCKET NUMBER:  AR20100030401 


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 he be medically retired from the Army.

2.  The applicant states he suffered terribly due to psychiatric issues that were caused by active duty.   He has been rated to a significant level by the Department of Veterans Affairs (VA) for post-traumatic stress disorder (PTSD) shortly after his discharge.  He feels that because Department of Defense medical retirement criteria has fallen more in line with VA rating disabilities he feels he is likely to be eligible.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation Date of 26 August 1988
* DD Form 214 with a separation date of 5 March 1993
* NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) with an effective date of 1 June 1998
* Department of Veterans Affairs (VA) Rating Decisions dated 2 April 2007, 3 August 2009, and 15 November 2010
* Army National Guard Retirement Points History Statement prepared on 
12 October 2009
* Standard Form (SF) 88 (Report of Medical Examination), dated 
26 January 1993
* SF 98 (Report of Medical History), dated 26 January 1993
* SF 600 (Chronological Record of Medical Care) showing treatment from 18 June to 13 December 1997
* DA Form 3349 (Physical Profile), dated 20 June 1997
* DA Form 3349, dated 19 March 1998
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 20 June 1997
* Progress Notes, dated from February 1996 through July 1997, from the Psychiatry Service Minneapolis VA Medical Center (VAMC)
* his claims file from the VA

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.  He enlisted in the U.S. Army Reserve on 12 February 1987.  He entered active duty for initial active duty for training (IADT) on 8 June 1988.  He completed basic combat and advanced individual training and was awarded military occupational specialty 91A (Medical Specialist).  He was released from active duty on 26 August 1988.

3.  On 2 June 1989, he enlisted in the Regular Army.  He was assigned military occupational specialty (MOS) 91B (Medical NCO (noncommissioned officer)).  On 5 March 1993, he was released from active duty by reason of early separation to further his education.  He completed 3 years, 9 months, and 4 days of active service that was characterized as honorable.

4.  His SF 93 for his separation medical examination, dated 26 January 1993 noted he had been treated at the Psychiatric Ward, United Hospital, Grand Forks, ND for depression with suicidal tendencies in January 1986.

5.  On 6 March 1993, he enlisted in the Minnesota Army National Guard (MNARNG).

6.  SF 600's, dated 18 June to 13 December 1997, show he was receiving treatment for depression.
7.  On 20 June 1997, he was given a temporary profile of S3 for depression with suicidal ideations.  A DD Form 689 (Individual Sick Slip), dated 20 June 1997, indicated in the Medical Officer's Section that his depression with suicidal ideation was not in the line of duty.  He was not to be on active duty and was to return home for care with a mental health provider.

8.  On 31 October 1997, a captain, LICSW (licensed clinical social worker) reviewed her clinical notes, documentation from Annual Training 1997, and a letter from a staff physician at the VA hospital to determine the applicant's ability to discharge his duties as a member of the MNARNG.

	a.  She stated the applicant, according to his history, had been experiencing depressive episodes and they appeared to be quite cyclical.  He was initially referred to Mental Health in December of 1996 due to his wanting to quit the MNARNG.  

	b.  He disclosed his history of depression and stated he was receiving treatment from the VA for major depression and PTSD.  He was currently experiencing a medication change and was having trouble.  He reported having problems at school and was feeling increased stress pending the birth of his first child which happened to be twins.  He was also concerned about his inability to make weight and pass the Army Physical Fitness Test.

	c.  The captain stated when the applicant was not experiencing a major depressive episode and was taking his medication he functioned effectively as a Soldier in the MNARNG.  However, in the past year he had experienced two episodes that have impaired his ability to function.  Though he may have periods free of any symptoms it is questionable the length of time he might be able to maintain.  The applicant has demonstrated he is unable to carry out his duties as assigned for a protracted amount of time.

9.  On 19 March 1998, he was given a permanent profile of S4 for severe depression and determined to be not fit for duty.

10.  On 30 March 1998, a State Medical Duty Review Board found the applicant medically unfit for retention and recommended he be separated from the MNARNG.  There is no record he submitted any information or that he requested his records be submitted to the Medical Care/Physical Standards Branch of the National guard bureau for an advisory opinion or waiver determination.  There is no record he requested a referral to a Physical Evaluation Board for a fitness determination.  Based on this lack of response it was assumed he concurred with the recommendation.

11.  A VA Rating Decision, dated 19 February 1998, denied service connection or aggravation for depression.  The evidence showed that depression existed prior to service.  His military medical records described a history of depression with suicidal ideation which necessitated psychiatric hospitalization prior to his enlistment in the Army.  The existence of depression was confirmed and his psychosocial stressors were regarded as financial, family, and occupational problems.  The VA psychiatrist opined that his depression did not differ materially from that found in other individuals and could not attribute it to his experiences in the Gulf War.

12.  On 1 June 1998, he was discharged from the MNARNG by reason of being medically unfit for retention.  His total service for pay was 11 years, 6 months, and 5 days.

13.  On 29 March 2002, he was diagnosed with PTSD during a general medical examination at the Minneapolis VAMC.  A VA Rating Decision, dated 27 July 2002, granted him service connection for PTSD with a 30 percent disability rating effective 17 April 2000.  However, his major depression remained not service connected, not aggravated by service.  His disability rating for PTSD was increased to 100 percent effective 14 December 2005.

14.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement.  

   a. Chapter 7 provides guidance on the classification of individual Soldiers according to functional abilities.  The physical profile serial system is based primarily upon the function of body systems and their relation to military duties. The functions of the various organs, systems, and integral parts of the body are considered.  Since the analysis of the individual’s medical, physical, and mental status plays an important role in assignment and welfare, not only must the functional grading be executed with great care, but clear and accurate descriptions of medical, physical, and mental deviations from normal are essential.  In developing the system, the functions have been considered under six factors designated “P–U–L–H–E–S.”  Four numerical designations are used to reflect different levels of functional capacity.  The basic purpose of the physical profile serial is to provide an index to overall functional capacity.  Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, will be evaluated in determining the numerical designation 1, 2, 3, or 4.

   b. Paragraph 7-3c(4) states that a profile serial containing one or more numerical designators of “4” indicates that the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. 

   c. National Guard Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness only.  Soldiers pending separation for In the Line of Duty (ILOD) injuries or illnesses will be processed in accordance with Army Regulation 40–400 and Army Regulation 635-40.

15.  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 govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LOD criteria to be eligible to receive retirement and severance pay benefits:

	a.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.  

	b.  The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

16.  National Guard Regulation 600-200 (Enlisted Personnel Management) governs the policies and procedures for assigning, attaching, removing, and 
transferring enlisted Soldiers of the ARNG/ARNGUS.  Chapter 8, of the regulation in effect at the time, provided for the discharge of Soldiers deemed medically unfit for retention per Army Regulation 40-501 and National Guard Regulation 40-501.

DISCUSSION AND CONCLUSIONS:

1.  When he was released from active duty on 5 March 1993 there was no evidence of his having a physical or mental disability that would have required he be processed through the PDES.  

2.  His separation physical examination conducted on 26 January 1993 noted he had received psychiatric treatment for depression with suicidal tendencies in January 1986, over 3 years before he enlisted in the Regular Army.

3.  A sick call slip, dated 20 June 1997, stated his depression with suicidal ideation was not in the line of duty.

4.  VA Rating Decision, dated 19 February 1998, denied service connection for his depression and regarded his stressors as financial, family, and occupational problems.  

5.  In view of the above, it is clear the applicant had a long history of depression that existed prior to his service.  In order to be processed through the PDES his disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.  Therefore, there is insufficient evidence to grant his request for medical retirement based on depression.

6.  He was diagnosed with PTSD on 29 March 2002, 9 years after he was released from active duty and 4 years after he was discharged from the MNARNG.  Therefore, there is no basis to grant medical retirement based on PTSD.

7.  A Soldier with a non-duty related medical condition may request a PEB; however, the PEB would only determine fitness for duty.  That is, a Soldier requests such a PEB when he disagrees with the determination that he is not medically fit for retention.  

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)                                         AR20100030401



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ABCMR Record of Proceedings (cont)                                         AR20100030401



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