IN THE CASE OF:	  

		BOARD DATE:	    6 March 2012

		DOCKET NUMBER:  AR20110018027 


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 discharge be changed to a disability retirement.  

2.  The applicant states he has been rated as 100 percent (%) disabled by the Department of Veterans Affairs (VA) and Social Security Administration (SSA); however, his 6 October 2005 shows he was discharged based on a condition, not a disability.  He claims his Post Traumatic Stress Disorder (PTSD) is directly tied to his experiences in Iraq in 2005, and his DD Form 214 (Certificate of Release or Discharge from Active Duty) implies he does not have a disability.  

3.  The applicant provides VA and SSA records in support of his application.  

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 record shows he enlisted in the Regular Army, on 4 January 2003, and he was trained in and awarded military occupational specialty (MOS) 25F (Network Switch Systems Operator).  His record shows he was advanced to specialist/E-4 on 1 July 2005, and this is the highest rank he attained while serving on active duty.  On 16 January 2005, the applicant deployed to Iraq.

3.  On 30 August 2005, the applicant underwent a command directed mental health evaluation.  The evaluation summary indicates the applicant had significant psychological distress related to home front issues.  The diagnosis indicated the applicant suffered from Axis I Dysthymic Disorder; Axis II Dependent Personality Traits; and Axis IV Occupational, Marital and Family Stressors.  The evaluating physician stated the applicant was mentally sound and had the mental capacity to understand and participate in any administrative proceedings.  The applicant’s conditions did not warrant a Medical Evaluation Board nor was the applicant amenable to hospitalization, psychotherapy, or medication management that would allow him to function successfully in the Army.  However, the applicant manifested significant psychological distress and marital concerns that interfered with adequate functioning in the military.  The examiner finally recommended that the applicant be expeditiously separated from the Army under the provisions of paragraph 5-17 (condition, not a disability), Army Regulation 635-200 (Personnel Separations).  

4.  On 5 September 2005, the applicant underwent a separation medical examination that shows the examining physician found the applicant was medically fit for further service.  

5.  On 12 September 2005, the applicant’s unit commander notified the applicant of his intent to initiate action to separate him under the provisions of paragraph 
5-17, Army Regulation 635-200, by reason of other designated physical or mental condition.  The unit commander stated the basis for the action was the applicant’s diagnosed conditions.  

6.  On 12 September 2005, 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 him.  Subsequent to this counseling, the applicant completed an election of rights in which he elected not to submit statements in his own behalf.  

7.  On 18 September 2005, the separation authority approved the applicant’s discharge under the provisions of paragraph 5-17, Army Regulation 635-200 and directed the issuance of an honorable discharge.  On 6 October 2005, the applicant was discharged accordingly.  


8.  The applicant provides a VA rating decision, dated 9 October 2007, which awarded him a 30% disability rating for PTSD.  He also provides a VA rating decision, dated 18 March 2010, that increased his rating for PTSD with agoraphobia and alcohol dependence to 100%, effective 16 December 2009.  He further submits a partial SSA decision indicating he has been considered disabled under the Social Security Act since 30 April 2007.  

9.  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.  Paragraph 3-1 of the same regulation outlines the 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.  

10.  Paragraph 3-5 of the disability regulation contains guidance on rating disabilities.  It states, in pertinent part, that 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. The percentage assigned to a medical defect or condition is the disability rating.  It further states to ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established.  These standards include guidelines for applying them to fitness decisions in individual cases.  These guidelines are used to refer Soldiers to an MEB.  The major objective of these standards is to achieve uniform disposition of cases arising under the law.  A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  

11.  The disability regulation further states these retention standards and guidelines should not be interpreted to mean that possessing one or more of the listed conditions or physical defects signifies automatic disability retirement or separation from the Army. The fact that the Soldier has one or more defects sufficient to require referral for evaluation, or that these defects may be unfitting for Soldiers in a different office, grade, rank, or rating, does not justify a decision of physical unfitness.  The overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation must be considered.  The effect will be considered both from the standpoint of how the disabilities affect the Soldier's performance and the requirements imposed on the Army to maintain and protect him or her during future duty assignments.  

12.  Title 38, United States Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct his DD Form 214 to show he was separated by reason of disability retirement as opposed to a condition, not a disability has been carefully considered.  However, there is insufficient evidence to support this request.   

2.  The evidence of record confirms the applicant underwent a mental status evaluation that resulted in the diagnosed conditions that interfered with him adequately performing his military duties, but that were not disqualifying for further service.  It also confirms he completed a separation medical examination that found him qualified for further service.  His separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  Army regulations and Department of Defense (DOD) authorities state that a medical impairment alone does not constitute a physical disability for DOD rating purposes.  Furthermore, determinations of fitness or unfitness rest with the military departments.  In this case, the applicant was clearly found qualified for continued service by competent medical authority at the time of separation.  The subsequent disability ratings assigned by the VA, effective in 2009; and disability determination of the SSA, effective in 2007, do not call into question the validity of the military medical determinations made at the time of the applicant’s discharge, nor do they show these conditions rendered him unfit to perform military service at the time of discharge in 2005.  As a result, there is an insufficient evidentiary basis to support granting 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)                                         AR20110018027



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ABCMR Record of Proceedings (cont)                                         AR20110018027


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