IN THE CASE OF:	   

		BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110009492 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired for disability instead of honorably discharged by reason of a "condition - not a disability."

2.  The applicant states he was put out due to post-traumatic stress disorder (PTSD).

3.  The applicant did not provide any evidence.

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 12 July 2000.  He completed training and he was awarded military occupational specialty 13M (MLRS (Multiple Launch Rocket System) Crewmember).

3.  He served in Kuwait/Iraq in support of Operation Enduring Freedom from 21 March 2003 to 4 June 2003.

4.  On 5 December 2003, he participated in a unit urinalysis and his sample tested positive for marijuana.  His section chief recommended him for disciplinary action under the Uniform Code of Military Justice (UCMJ).

5.  On 8 December 2003, he underwent a psychiatric examination at Winn Army Community Hospital, Fort Stewart, GA.  He displayed no suicidal behavior on the ward.  He was diagnosed with an adjustment disorder, poly-substance abuse, and alcohol intoxication.   A staff psychiatrist recommended him for administrative separation under the provisions of Army Regulation 600-200 (Personnel Separations - Enlisted Personnel), paragraph 5-17.  He stated that the applicant:

* met retention standards of Army Regulation 40-501 (Standards of Medical Fitness)
* did not have a psychiatric disease that warranted disposition through medical channels
* was mentally sound and able to appreciate any wrongfulness in his conduct 
* had the mental capacity to understand and participate in board or administrative proceedings
* had a condition that was not amenable to further treatment, manifesting disturbances of perception or emotional control that significantly impaired his military performance

6.  On 7 January 2004, he underwent a mental status evaluation.  The military psychologist found he had a normal behavior, and he was fully alert and oriented with clear thinking and normal thought content.  He had the capacity to understand and participate in proceedings and he met the retention standards of Army Regulation 40-501.  He was diagnosed with an adjustment disorder.  He was psychiatrically cleared for any action appropriate by his chain of command.

7.  On 13 January 2004, he underwent a medical examination at Winn Army Community Hospital.  He noted his depression, alcohol and drug proteins, and he indicated that he had had a suicide attempt in November 2003.  The military physician found him fully qualified for service.

8.  On 27 January 2004, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him for other designated physical or mental conditions.  The specific reason was the applicant's adjustment disorder and poly-substance abuse.  He recommended an honorable discharge.

9.  The applicant acknowledged receipt of the separation notification memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

10.  On 27 January 2004, the applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of adjustment disorder and poly-substance abuse.  He recommended the applicant receive an honorable discharge.

11.  On 10 February 2004, the intermediate commander recommended approval of the discharge with an honorable discharge.

12.  Consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-17 by reason of other designated physical or mental condition with an honorable discharge.

13.  He was accordingly discharged on 2 March 2004 under the provisions of Army Regulation 635-200, paragraph 5-17, based on a physical condition, not a disability, with an honorable discharge.  He was assigned a separation code of "JFV."  This form also shows he completed 3 years, 7 months, and 21 days of creditable active service.

14.  There are no accompanying service medical/treatment records or other documentation that show he was diagnosed with PTSD.  Additionally, his records do not indicate that he suffered from an injury, illness, or any medical condition that would have warranted his entry into the Army's physical disability evaluation system (PDES).

15.  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.  It provides for medical evaluation boards (MEBs) which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation
40-501.  Paragraph 3-1 provides that the mere presence of 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.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation
40-501, chapter 3.  These standards include guidelines for applying them to fitness decisions in individual cases.  These guidelines are used to refer Soldiers to an MEB.

16.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the physical evaluation board (PEB) rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities (VASRD).

17.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or at least a
30 percent (%) disability rating percentage.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than
20 years of service and a disability rating at less than 30%.

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. It identifies the SPD of "JFV" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, paragraph 5-17, based on a physical condition, not a disability.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows he underwent a mental status evaluation that diagnosed him as having adjustment disorder and poly-substance abuse.  Army mental health providers had multiple inpatient and outpatient encounters with the applicant but he was never diagnosed with PTSD.

2.  He related a previous suicide attempt and a history of alcohol or drug abuse.  His adjustment disorder was incompatible with military service.  The military psychiatrist specifically stated the applicant was mentally competent and he recommended his separation under the provisions of Army Regulation 635-200, paragraph 5-17.

3.  Accordingly, his chain of command initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-17.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge was reviewed for legal sufficiency.

4.  There is no evidence in the available records and he did not provide sufficient evidence that shows he was diagnosed with PTSD or any other condition that would have warranted his entry into the PDES.  Medical retirement is based on existence of a condition that did not meet retention standards.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  Therefore, he is not entitled to the 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)                                         AR20110009492



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ABCMR Record of Proceedings (cont)                                         AR20110009492



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