IN THE CASE OF:	  

		BOARD DATE:	  22 December 2011

		DOCKET NUMBER:  AR20110010817 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he was discharged for the reason of "Physical Disability with entitlement to Severance Pay" and that his separation program designator (SPD) code reflect this change.  

2.  The applicant states he was medically discharged in March 2003 after a physician determined he was unable to continue his military service based on conditions that were not present prior to entry into the U.S. Army.  He is currently rated at 60 percent disabled by the Department of Veterans Affairs (VA) for service connected disabilities that were brought on by his military service.  He is attempting to obtain benefits for the post 9-11 GI bill.

3.  The applicant provides:

* VA disability rating of 10 percent, dated 23 September 2003.
* VA disability rating which shows an increase from 10 to 50 percent, dated 10 October 2006

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's military records show he enlisted in the Regular Army on 
1 July 1994.  He completed his basic and advanced individual training and was awarded military occupational specialty (MOS) 91K (Medical Laboratory Specialist).

3.  On 6 January 2003, his commander requested the applicant undergo a psychiatric evaluation.  He stated the applicant had borrowed money from a junior Soldier and been punished under the Uniform Code of Military Justice (UCMF).  In addition, he had been served with a restraining order for stalking his ex-girlfriend.  His obsession with his girlfriend had affected his job performance. 

4.  In a memorandum, dated 16 January 2003, the Psychiatric Clinical Nurse Specialist, Department of Environmental Health, Womack Army Medical Center, advised his commander of the results of his mental health examination.  It stated that on 15 January 2003 the applicant was seen in the Department of Behavior Health and the diagnostic findings were as follows:

* Axis I:  Adjustment disorder with mixed disturbance of emotions and conduct
* Axis II:  Deferred
* Axis III:  None

5.  In regard to his fitness for duty/impressions the evaluation found he:

* had the mental capacity to participate in the proceedings
* was mentally responsible/able to distinguish between right and wrong
* met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3

6.  The evaluation stated he did not have a mental disorder; however, his present state of emotional and/or behavioral dysfunction was of such severity that his ability to perform military duties was significantly impaired.  Further, his condition met the criteria set forth in Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 and administrative separation would be in the best interest of the Soldier and the unit. 
7.  On an unknown date, his unit commander notified the applicant of his intent to separate him under the provisions of Army Regulation 635-200, because of a psychiatric condition.  He was also advised of his rights.

8.  On 25 February 2003, after consulting with counsel, he acknowledged receipt of the proposed separation and the reason.  On 3 March 2003, he waived his rights and elected not to submit a statement in his own behalf.

9.  On an unknown date, his unit commander recommended he be separated from the Army under Army Regulation 635-200, paragraph 5-17, with an honorable discharge.  The unit commander stated the recommendation was based on a report of psychiatric examination that indicates a psychiatric condition.  Additionally, he had demonstrated through repeated conduct, after formal counseling, that other disposition would be inappropriate.

10.  On 10 March 2003, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 5-17, with the issuance of an Honorable Discharge Certificate.

11.  He was honorably discharged on 25 March 2003 under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of a condition, not a disability.  He was credited with 8 years, 8 months, and 25 days of net active service.

12.  Item 26 (Separation Code) of his DD Form 214 shows "JFV" and Item 
28 (Narrative Reason for Separation) lists "PHYSICAL CONDITION, NOT A DISABILITY."

13.  He provides two VA disability rating decisions which show, in part, he was granted a service connected rating of 10 percent for schizophrenia, paranoid type, with an effective date of 11 July 2003, the date of his VA examination. The rating decision states that although he only had one active duty record of adjustment disorder his condition manifested to a compensable degree within a year of his discharge.

14.  Army Regulation 635-200, chapter 5, paragraph 5-17 states commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  Members may be separated for physical or mental conditions not amounting to disability, sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.

15.  Army Regulation 635-40 provides for the expeditious discharge of enlisted personnel who, in accordance with Army Regulation 40-501, chapter 3, were not qualified for retention on active duty by reason of physical disability which was neither incurred nor aggravated during any period in which the member was entitled to basic pay.

16.  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 condition, not a disability.

17.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA has neither the authority nor the responsibility for determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his records to show he was given a medical discharge and the applicable separation code.

2.  The record shows he was diagnosed by competent military medical authority as having an adjustment disorder and as a result he was separated under the provisions of paragraph 5-17, Army Regulation 635-200 by reason of a physical condition, not a disability.  It further shows that based on this authority and reason for separation he was appropriately assigned a SPD code of "JFV" in accordance with the applicable regulation.

3.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.  The evidence provided by the applicant shows he was diagnosed with schizophrenia after his discharge and because his medical condition manifested to a compensable degree within a year of his discharge he was initially assigned a 10 percent disability rating.

4.  However, an award of a VA rating does not establish entitlement to medical retirement or separation.  The VA operates under its own policies and regulations and provides compensation when a medical condition is determined to be service connected.  Furthermore, the VA can evaluate a veteran over his or her lifetime, adjusting the percentage of disability based upon the agency's examinations and findings.

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)                                         AR20110010817





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ABCMR Record of Proceedings (cont)                                         AR20110010817



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