IN THE CASE OF:	  

		BOARD DATE:	  17 November 2011

		DOCKET NUMBER:  AR20110011019 


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 records to show he was retired by reason of permanent disability.

2.  The applicant states that he was unjustly discharged instead of being evaluated by a medical evaluation board (MEB) and a physical evaluation board (PEB) and being medically discharged due to permanent disability.  He states the determination made by the Social Security Administration which found he was disabled under its rules on 4 November 2009 shows he was disabled before he was discharged in June 2010.

3.  The applicant provides:

* a seven-page letter explaining his application
* a copy of his Social Security Administration disability award
* copies of medical treatment records and counseling statements

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 16 June 2008 for a period of 4 years and 22 weeks, training as a petroleum supply specialist, and a $40,000.00 enlistment bonus.  He completed training and was transferred to Hunter Army Airfield, Georgia, for his first and only duty assignment.

2.  On 6 March 2009, the applicant referred himself to the Behavioral Medicine Clinic because he was experiencing suicidal thoughts.  He again had similar thoughts in August 2009.  He did not return until March 2010 when he began to experience marital problems and conflicts with his unit and the chain of command.

3.  On 5 March 2010, nonjudicial punishment (NJP) was imposed against him for two specifications of failing to go to his place of duty.
 
4.  On 27 April 2010, the applicant was command-referred for a mental status evaluation.  He requested to be discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17.  The applicant was diagnosed as having an adjustment disorder and the examining psychiatrist recommended his administrative discharge under the provisions of Army Regulation 635-200, paragraph 5-17.

5.  On 12 May 2010, NJP was imposed against him for failing to go to his place of duty, disobeying a lawful order from a superior noncommissioned officer, and being disrespectful in language and deportment towards a superior noncommissioned officer.

6.  On 1 June 2010, the applicant's commander notified him that he was initiating action to discharge him from the service for other designated physical or mental conditions under the provisions of Army Regulation 635-200, paragraph 5-17.

7.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

8.  The applicant underwent a separation medical examination and was deemed fit for separation.

9.  The appropriate authority approved the recommendation for discharge on 11 June 2010 and directed issuance of an Honorable Discharge Certificate.

10.  Accordingly, he was honorably discharged in pay grade E-1 on 22 June 2010 under the provisions of Army Regulation 635-200, paragraph 5-17, due to a condition, not a disability.  He completed 2 years and 5 days of active service.

11.  A review of the available records shows that the applicant had equinovarus [club foot] and pes planus [flat feet], conditions that existed prior to service and are known causes for the type of foot pain of which he was complaining.  He also had a history of mental health problems which he concealed at the time of his enlistment, including suicide attempts at age 10 and age 15, suicidal ideation at age 23, and behavioral health counseling prior to his entry on active duty.

12.  On 24 August 2010, the Social Security Administration granted the applicant disability benefits beginning May 2010.  However, those benefits were subject to change based on the fact that the medical personnel who determined he was disabled expected his condition to improve.  He was scheduled for reevaluation in December 2011.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It establishes the Army Physical Disability Evaluation System (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.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Under the laws governing the PDES, 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.  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 also states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  The unfitness must be of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states commanders of medical treatment facilities (MTF's) who are treating Soldiers may initiate action to evaluate the Soldier's physical ability to perform the duties of his or her office, grade, rank, or rating.  The commander will advise the Soldier's commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB.

15.  Army Regulation 635-40 states that MEB's 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

16.  Army Regulation 40-501 states, for adjustment disorders, that situational maladjustment due to acute or chronic situational stress do not render an 

individual unfit due to physical disability but may be the basis for administrative separation if recurrent and causing interference with military duty.

17.  Army Regulation 635-200, paragraph 5-17, provides for the separation of Soldiers on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performances of duty.  Such conditions may include, but are not limited to, 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.

18.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has an impairment rated at least 30-percent disabling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided and the available record does not contain sufficient evidence to show he was determined to be unfit for retention or discharge at any point during the separation process.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative discharge was accomplished in accordance with the applicable regulations with no violations of his rights.

2.  In the absence of evidence to the contrary, it must also be presumed that medical personnel properly determined his medical condition, if he had any, did not warrant consideration under the Physical Disability Evaluation System and/or referral to an MEB and/or a PEB at the time he underwent his separation physical.  Accordingly, it appears he was properly discharged under administrative procedures in accordance with the applicable regulations.

3.  It is also noted that all of the conditions for which he claims he should have been considered for disability were conditions that existed prior to his service.  As such, it appears he would not have been entitled to disability compensation even if there were evidence to show he was unit for service.

4.  In the absence of evidence to show he was unfit for separation at the time of his discharge or he could not perform the duties of his rank and MOS as outlined in Army Regulation 635-40, there appears to be no basis to grant his request for medical retirement.


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 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)                                         AR20110011019



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ABCMR Record of Proceedings (cont)                                         AR20110011019



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