IN THE CASE OF:	  

		BOARD DATE:	    27 March 2012

		DOCKET NUMBER:  AR20110013872 


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 military records to show he was medically retired with a disability rating of at least 50 percent.

2.  He states he served honorably in the U.S. Marine Corps (USMC) from 22 June 1999 to 21 August 2003.  He was deployed to Iraq in support of Operation Iraqi Freedom as a member of the USMC.  He maintains he participated in numerous combat operations and witnessed U.S. Soldiers killed and/or wounded in battle.  He also states he saw Iraqi women and children killed and/or wounded in an artillery attack.

	a.  After he left the USMC he began experiencing symptoms that he now understands to be associated with post-traumatic stress disorder (PTSD).  He provides a synopsis of those symptoms and explains he was often depressed and sometimes has suicidal thoughts.  He maintains that his condition affected his ability to find and keep jobs after he left the Marines.

	b.  He provides a synopsis of his two failed jobs after he was discharged from the USMC and his subsequent enlistment in the U.S. Army.  He states that shortly after his arrival at Fort Drum, NY, he was told he would be deployed to Iraq.  The unexpected news caused his depression and PTSD symptoms to deteriorate.  In mid-August 2007, he was hospitalized twice, confined to a mental ward, and treated for extreme depression, anxiousness, and suicidal ideations.

	c.  He speaks to traumatic events in his life, such as the accidental death of his 7-month old daughter and the temporary loss of custody of his two children, which he maintains intensified his depression and PTSD.  He states he eventually received an honorable discharge from the U.S. Army and subsequently filed a claim with the Department of Veterans Affairs (VA).  He concludes by stating he received a 50-percent disability rating for PTSD with major depression from VA the day after his discharge.

3.  The applicant defers additional evidence to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states the applicant enlisted in the U.S. Army on 2 July 2007 and served honorably until he was administratively discharged for "other designated physical or mental conditions not amounting to a disability" in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17.  He maintains that the applicant's discharge under this paragraph violated the regulation governing Soldiers suffering from PTSD and an anxiety disorder.

	a.  Counsel opines that instead of being administratively separated, the applicant should have been found unfit for further military service in accordance with Army Regulation 40-400 (Patient Administration) and Army Regulation 
40-501 (Standards of Medical Fitness) and permanently medically retired.  He justifies this statement by explaining that the VA diagnosed the applicant with PTSD and he received a 50-percent disability rating shortly after his discharge.  He adds that had the U.S. Army made a correct diagnosis, the applicant would have been found unfit for further military service due to PTSD and would have been medically retired.

	b.  Counsel offers that when a service member is suffering from a mental disorder, such as PTSD or depression, the U.S. Army is to refer the member to a medical evaluation board (MEB) and a physical evaluation board (PEB).  He states the U.S. Army failed to comply with its own regulations.  Therefore, as an alternative, counsel states that the applicant should be retroactively placed on the Temporary Disability Retirement List (TDRL) with a reexamination scheduled for the near future.  Additionally, he requests that the applicant be admitted into the Physical Disability Evaluation System (PDES) and properly assessed in accordance with the appropriate regulations.

2.  Counsel provides the following pertaining to the applicant:

* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* VA Compensation and Pension Examination Report, dated 13 May 2003
* medical reports
* separation packet
* DA Form 3822-R (Report of Mental Status Evaluation)
* DD Form 2808 (Report of Medical Examination)
* DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag))
* VA Rating Decisions

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 records show he enlisted in the USMC on 22 June 1999.  He served 4 years and 2 months of active duty of which 4 months and 12 days was listed as foreign service.  He was honorably released from active duty on 21 August 2003.

3.  On 16 November 2006, he underwent a physical examination at the Chicago Military Entrance Processing Station for entrance in the Regular Army.  Item 17 (Have you ever had or do you now have) of his DD Form 2807-1 (Report of Medical History) shows he answered "No" to the following questions:

* nervous trouble of any sort (anxiety or panic attacks)
* 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 

4.  On 2 July 2007, he enlisted in the Regular Army.  He was trained in and awarded military occupational specialty 11B (Infantryman).


5.  His medical reports show he was diagnosed with major depressive disorder and admitted to the hospital on the following dates with the following complaints:

	a.  On 14 August 2007, he was involuntarily admitted for depression.  The applicant stated he had been depressed for the past 3 years.  He described poor sleep, poor appetite, and a poor level of concentration.  He said he could not do his job and felt he could not take care of his family.  He also felt he was unable to fulfill his duty and the deployment.  He said he had depression in the past, but this was his first time in treatment and hospitalized.  He stayed in the hospital for 17 days and was diagnosed with major depressive disorder.  He was discharged on 30 August 2007.

	b.  On 31 August 2007, he was involuntarily admitted for being suicidal.  He stated he went back to Fort Drum after his hospital discharge and became overwhelmed when he was threatened with an arrest for having an unregistered handgun.  He sent a text message to his wife saying he wanted to kill himself.  He stayed in the hospital for 6 days and was discharged on 6 October 2007.

	c.  On 6 September 2007, he was involuntarily admitted.  He stated he told his sergeant he had a document from the Mental Health Service at Fort Drum stating he was not deployable and he needed to go to the Guthrie Clinic.  He added an argument ensued.  The applicant was upset and said he would harm himself if he deployed.  He remained in the hospital until 11 September 2007 when he was called to the emergency room and informed that his child drowned in the bath tub at home.

6.  On 25 October 2007, he underwent a medical examination which noted he suffered from depression.  Item 17 of his DD Form 2807-1 shows he answered "Yes" to the following questions:

* nervous trouble of any sort (anxiety or panic attacks)
* frequent trouble sleeping
* received counseling of any type
* depression or excessive worry 
* been evaluated or treated for a mental condition

7.  On 16 November 2007, he underwent a mental status evaluation.  The psychiatrist found he had the mental capacity to understand and participate in proceedings and was mentally responsible and met retention requirements of Army Regulation 40-501.  The psychiatrist said the applicant met the criteria for adjustment disorder with mixed anxiety and depressed mood.

8.  The psychiatrist further stated the applicant had experienced depressive and anxious symptoms in response to multiple severe stressors over the last year which had a negative impact on his occupational and social functioning.  He added that while the applicant's symptoms improved with treatment, the chronic nature of the stressor and the extent to which it would be exacerbated by his continued military service would serve as a constant distraction.  He said this would make it difficult for the applicant to successfully adapt to the stress of life in the U.S. Army during a time of war.  He recommended the applicant's expeditious separation under Army Regulation 635-200, paragraph 5-17.

9.  On an unspecified date, the commander notified the applicant he was initiating action to separate him under the provisions of Army Regulation 
635-200, paragraph 5-17, for other designated physical or mental conditions.  He stated the reason for his proposed action was that the applicant was seen at Behavioral Health on 15 November 2007 for emotional and behavioral symptoms and diagnosed as having an adjustment disorder with mixed anxiety and depressed mood.  On 30 November 2007, the applicant acknowledged receipt of the discharge notice.

10.  On 4 December 2007, he signed the memorandum of his election of rights regarding his separation under Army Regulation 635-200, paragraph 5-17.  He acknowledged his right to consult with counsel and he elected to seek advice from military counsel to further explain the proposed separation and its effects, the rights available to him, and the effects of any action taken by him in waving his rights.  He elected not to submit statements on his behalf.

11.  On an unspecified date, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 5-17 with an honorable discharge.

12.  The applicant's record is void of any evidence that shows he was ever deployed during his service in the U.S. Army.

13.  The applicant's DD Form 214 shows he was honorably discharged on 5 February 2008 under the provisions of Army Regulation 635-200, paragraph 
5-17, by reason of a condition, not a disability.  He completed a total of 7 months and 4 days of active service.

14.  On 1 May 2008, the applicant underwent an initial evaluation for PTSD at the VA Medical Center in Buffalo, NY.  The VA provided a military history of the applicant as previously explained in the Record of Proceedings.  The evaluation noted that the applicant stated he first experienced PTSD symptoms after he returned from his enlistment with the USMC.  He reported that he knew he was changed and had symptoms such as nightmares and flashbacks, but he did not want to tell anyone.  He said he continued to experience distress symptoms while serving in the U.S. Army that were diagnosed as an adjustment disorder.

15.  The examining provider stated the results of the evaluation revealed that the applicant presented with evidence of a moderate PTSD disorder due to verified combat experience in Iraq.  He also presented with evidence of a moderate major depression disorder that was related to his PTSD to some degree, but more prominently related to the tragedy and trauma of losing a child in 2007 and the subsequent placement of his other two children in foster care.  The examining provider opined that the applicant's prognosis was fair to good with treatment, but currently his symptoms of depression and PTSD were moderate and he was dealing with significant trauma in his life.

16.  On 26 June 2008, he received a 50-percent service-connected disability rating from the VA for PTSD with major depression with an effective date of 6 February 2008.

17.  Army Regulation 635-200, paragraph 5-17, states that 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, which includes those members suffering from a disorder manifesting disturbances of perception, thinking, emotional control, or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.  Members separated under this provision of the regulation will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in an entry-level status.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures 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.

	a.  Paragraph 3-1 (Standards of Unfitness Because of Physical Disability) 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 may reasonably be expected to perform because of his or her office, grade, rank, or rating.  The regulation states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

	b.  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.

	c.  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, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

	d.  Paragraph 4-17 provides that PEB's are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  Its findings and recommendations may be revised.  It is a fact-finding board for the following:

* investigating the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board
* evaluating the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating
* providing a full and fair hearing for the Soldier as required under Title 10, U.S. Code, section 1214
* making findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability

	e.  Paragraph 3-9 states that requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208.  In addition, the condition must be determined to be temporary or unstable.

19.  Army Regulation 40-400 states that when a military patient is hospitalized before the effective date of separation or retirement orders, notification procedures in Army Regulation 635-200 for enlisted personnel apply.

20.  Army Regulation 40-501, paragraph 3-36, provides guidance for adjustment disorders.  It states that situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.

21.  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.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the government, operating under different policies, to arrive at a different disability rating based on the same impairment.  Furthermore, unlike the U.S. Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that his record should be corrected to show he was medically retired with a 50-percent disability rating for PTSD.

2.  The evidence of record shows the applicant underwent a medical examination in which he indicated he had no nervous trouble of any sort, no problems sleeping, had not received any type of counseling, had not been evaluated or treated for a mental condition, and had no depression or excessive worrying prior to enlisting in the Army.  These are the same symptoms he now claims as the basis for his request for a medical discharge.

3.  The evidence further shows he was diagnosed with major depressive disorder just 6 weeks after he enlisted in the Army.  During his admittance for depression on 14 August 2007, he stated he had been depressed for the past 3 years and had difficulty sleeping, poor appetite, and a poor level of concentration.  He said he could not do his job and felt he was unable to deploy.

4.  On 16 November 2007, he underwent a mental status evaluation and was diagnosed with an adjustment disorder with mixed anxiety and depressed mood. 
The examining psychiatrist found he had the mental capacity to understand and participate in proceedings and was mentally responsible and met retention requirements of Army Regulation 40-501.

5.  On 30 November 2007, the applicant acknowledged receipt of the commander's notification to separate him under the provisions of Army Regulation 635-200, paragraph 5-17.  Specifically, the commander cited the applicant's treatment at Behavioral Health for emotional and behavioral symptoms and being diagnosed with an adjustment disorder with mixed anxiety and depressed mood as the basis for the discharge action.  The applicant acknowledged his right to consult with counsel and elected to seek the advice from military counsel to further explain the proposed separation and its effects, the rights available to him, and the effects of any action taken by him in waiving his rights.

6.  The evidence shows the applicant was provided complete due process – medical authorities confirmed his diagnosis, he was hospitalized on several occasions, and he was treated for major depressive disorder.  Additionally, he was provided the specific reason for his discharge and afforded the opportunity to seek counsel.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

7.  His records show he was diagnosed with an adjustment disorder with mixed anxiety and depressed mood.  As cited in the regulation, situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.

8.  The evidence of record shows the first time PTSD surfaced was during his evaluation at the VA Medical Center on 1 May 2008, almost 3 months after he was discharged from active duty on 5 February 2008.  On 26 June 2008, he received a disability rating of 50 percent for service connection for PTSD effective 6 February 2008.  There is no evidence and he or his counsel has not provided any evidence that indicates he had a medically-unfitting disability that was incurred or aggravated during his service in the Army which required physical disability processing.

9.  The evidence suggests his symptoms existed prior to his enlistment in the U.S. Army.  This assumption is based on the facts that within 6 weeks of his enlistment he was involuntarily admitted for depression and that he served 7 months on active duty and was never deployed.  Therefore, his medical issues would have been more appropriately addressed based on his service with the USMC vice the U.S. Army.

10.  Nevertheless, Army Regulation 635-40 provides that the U.S. Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  The VA, on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires that the VA must give the veteran the benefit of any reasonable doubt.  The fact that he was awarded a 50-percent disability rating by the VA for PTSD is not sufficient justification to place him on the TDRL for processing through the PDES.

11.  An award of a VA rating does not establish error in the rating assigned by the Army's disability evaluation system.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability.

12.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment he received during his U.S. Army service.

13.  In view of the evidence in this case, there is no basis for granting his 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 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)                                         AR20110013872



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ABCMR Record of Proceedings (cont)                                         AR20110013872



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