IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110004213 


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, in effect, that her discharge action be set aside, and reinstatement in an active duty status for processing through the Physical Disability Evaluation System (PDES) for a medical retirement.  She requests as an alternative that her under other than honorable conditions (UOTHC) discharge be upgraded to a general, under honorable conditions discharge (GD).  

2.  The applicant’s statements and supporting documentation are submitted through counsel.   

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s discharge be set aside and that she be reinstated in an active duty status to undergo separation processing through medical channels, or as an alternative, that her UOTHC discharge be upgraded to a GD.  

2.  Counsel states this application seeks to correct an injustice the applicant suffered by being separated from the Army without having been processed through the PDES to determine the scope and extent of her disability and whether she was fit for continued military service.  



3.  Counsel further outlines a history of the applicant’s treatment for the following conditions between May 2007 and March 2008 prior to her entry into military service:

* Alcohol Dependence
* Marital Problems
* Panic Disorder with Agoraphobia
* Suicide Risk
* Alcohol Intoxication
* Chronic Post Traumatic Stress Disorder (PTSD)
* Foot Sprain
* Infertility 
* PTSD
* Adult Sexual Abuse
* Agoraphobia

4.  Counsel provides the documents identified in the application addendum in support of this application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows she enlisted in the Regular Army on 10 March 2009, in the rank of private/E-2, which is the highest rank she held while serving on active duty. 

2.  During her enlistment processing, the applicant completed a DD Form 2807-1 (Report of Medical History) and responded “No” to the following questions in item 17a:

* Nervous trouble of any sort (anxiety or panic attacks)
* Habitual stammering or stuttering 
* Loss of memory or amnesia or neurological symptoms 
* Frequent trouble sleeping
* Received counseling of any type
* Depression or excessive worry
* Been evaluated or treated for a mental condition
* Attempted suicide
* Used illegal drugs or abused prescription drugs 



3.  In response to the question “have you consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years for other than minor illnesses” the applicant also responded “No.”  The only illnesses or hospitalizations listed by the applicant on the medical history form were child birth and childhood chicken pox.  

4.  The applicant also failed to acknowledge that she had consulted with a health care professional regarding an emotional or mental health condition or that she was hospitalized for such a condition in the past 7 years on the DA Form 3286 (Dynamic Annex) she completed during her enlistment processing. 

5.  On 22 May 2009, she completed basic training at Fort Jackson, South Carolina, and was assigned to Fort Gordon, Georgia to attend advanced individual training in military occupational specialty 25B (Information Systems Operator-Analyst). 

6.  The available evidence shows the applicant was reduced to private/E-1 for cause on 5 August 2009.  Her record documents no acts of valor or significant achievement.  

7.  The applicant’s disciplinary history includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 22 October 2009, for being absent without leave (AWOL).  It also includes accrual of 42 days of lost time due to being AWOL on three occasions between 19 July and 8 December 2009.  

8.  On 10 December 2009, the applicant underwent a mental status evaluation.  The applicant was found to have the mental capacity to understand and participate in the separation proceedings and she was mentally responsible.  There was no evidence of any past or present psychiatric illness that would interfere with separation processing and the applicant did not appear to be a threat to herself or others.  The applicant was cleared for administrative action deemed appropriate by command.

9.  On 14 December 2009, the applicant underwent a separation physical examination.  The DD Form 2808 (Report of Medical Examination) documenting this examination shows the applicant was determined to be suffering from Post Traumatic Stress Disorder (PTSD), major depression, anxiety, and insomnia.  It further shows these conditions were not considered disabling or disqualifying for further service and the applicant was determined to be medically qualified for retention/separation by the examining physician.  

10.  In January 2010, the unit commander notified the applicant separation action was being initiated to separate her under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations) based on commission of serious offenses by being AWOL from on or about 9 October through 19 October 2009 and from 10 November through 8 December 2009. 

11.  On 6 January 2010, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to her.  Subsequent to receiving this legal counsel, the applicant completed an election of rights in which she waived her right to and a personal appearance before an administrative separation board, the right to counsel, and she elected not to submit statements in her own behalf.  

12.  On 7 January 2010, the unit commander submitted a recommendation for the applicant’s separation under the provisions of chapter 14, Army Regulation 
635-200, with an UOTHC discharge.  The commander cited the bases for the recommendation was the applicant’s AWOL offenses from on or about 19 July to 20 July 2009, 9 October to 19 October 2009 and 10 November to 8 December 2009.

13.  On 8 February 2010, the separation authority approved the applicant’s separation action under the provisions of paragraph 14-12c, by reason of commission of a serious offense and directed the issuance of a UOTHC discharge.  On 18 February 2010, the applicant was discharged accordingly.  

14.  Counsel provides extensive military medical treatment records pertaining to the applicant, dated between 2007 and 2010, that outline her medical treatment prior to enlistment and during her period of military service.  

15.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions; a pattern of misconduct; commission of a serious offense, which includes drug abuse; conviction by civil authorities; desertion, and absence without leave.  It stipulates that a UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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.  

17.  Paragraph 3-1 of the disability regulation outlines standards of unfitness because of physical disability.  It states the mere presence of an impairment does not, 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 their office, grade, rank, or rating.  Paragraph 4-3 contains guidance on the eligibility for disability processing of an enlisted Soldier subject to administrative separation.  

18.  Paragraph 3-3 of the same regulation provides guidance on conditions which existed prior to entry in service (EPTS).  It states after a Soldier is accepted for active duty, discovery of an impairment causing physical disability is not conclusive evidence that the condition was incurred after acceptance. Consideration must also be given to accepted medical principles in deciding whether a medical impairment was the result of, or aggravated by, military service while the Soldier was entitled to basic pay.  EPTS conditions determined not to be incurred while a member is eligible for basic pay or not be aggravated by military service are not a basis for an unfitness determination and are not ratable conditions during PDES processing.   

19.  Paragraph 4-3 of the PDES regulation provides guidance on enlisted Soldiers subject to administrative separation.  It states an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of UOTHC.  Paragraph 4-19f contains guidance on entitlement to benefits based on a Physical Evaluation Board determination and states when deciding whether a Soldier is entitled to Army disability retired or severance pay it must be established that the disability was incurred while the Soldier was entitled to basic pay.  

DISCUSSION AND CONCLUSIONS:

1.  The request for the applicant's discharge to be set aside and reinstatement in an active duty status for processing through the PDES has been carefully considered.  However, there is insufficient evidence to support this request.  

2.  The record clearly shows the applicant suffered from PTSD, major depression, anxiety, and insomnia, and that she was treated for these conditions and related conditions while serving on active duty, as evidenced by the military medical treatment records that were submitted with her application.  However, 
 the majority of these and the other medical conditions referred to by counsel were EPTS and were not incurred or aggravated by service and were not disclosed by the applicant during her enlistment processing.  Therefore, they were not a basis for an unfitness determination that would qualify the applicant for Army disability retired or severance pay.  As a result, there is an insufficient evidentiary basis to support the applicant’s reinstatement for processing through the PDES. 

3.  The request to consider upgrading her UOTHC discharge to a GD was not considered by this Board.  There is no evidence the applicant has exhausted all administrative remedies available to her on this matter by petitioning the Army Discharge Review Board for an upgrade of her discharge which is necessary prior to consideration of this issue by this Board.  

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)                                         AR20110004213



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ABCMR Record of Proceedings (cont)                                         AR20110004213



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