IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110018733 


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 that her narrative reason for separation be changed from “condition, not a disability” to "medical retirement."  

2.  The applicant states the mental health condition that resulted in her discharge was identified as a mood disorder and rated at 30 percent (%) by the Department of Veterans Affairs (VA).  She states she suffered from no mental health conditions prior to service other than post partum depression.  She claims she has a combined VA disability rating of 50% for service connected conditions.  

3.  The applicant provides VA records and a VA rating decision in support of her 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 enlisted in the Regular Army on 16 September 2005.  She was trained in and awarded military occupational specialty (MOS) 91W (Heath Care Specialist).  

3.  On 29 June 2006, the applicant underwent a mental health evaluation.  The examining psychologist found the applicant had the mental capacity to understand and participate in proceedings and was mentally responsible.  The applicant was diagnosed with an Axis I Mood Disorder, not specified, and ruled out Dysthymic Disorder.  The psychologist indicated the applicant had been diagnosed with a depressive disorder prior to service and indicated consultation with the community health psychiatrist who agreed that the applicant had an unspecified mood disorder.  The applicant indicated that she had never really been happy.  The examiner indicated her condition was a life-long condition that was not compatible with military service and recommended the applicant’s separation under paragraph 5-17 (Condition, Not a Disability), Army Regulation 635-200 (Personnel Separations).

4.  On 31 July 2006, the applicant’s unit commander notified her of his intent to initiate action to separate her under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of condition, not a disability.  

5.  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 her.  Subsequent to this counseling, the applicant completed an election of rights in which she waived her right to counsel and elected not to submit statements in her own behalf.  

6.  On 5 August 2006, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 5-17, and directed she receive an honorable discharge.  On 14 August 2006, the applicant was discharged accordingly.

7.  The applicant provides a VA rating decision, dated 21 November 2007, which indicates she is receiving disability benefits for service connected conditions that include a mood disorder which is rated 30% disabling, effective 15 August 2006.  

8.  Army Regulation 635-200 sets policies, standards, and procedures for the administration of enlisted personnel.  Paragraph 5-17 provides for separation by reason of other designated physical or mental conditions not amounting to a disability.  


9.  Army Regulation 635-40 establishes the Army's 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.  

10.  Paragraph 3-1 of the disability regulation outlines the standards of unfitness because of physical disability.  It states 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.  

11.  Title 38, U.S. 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 change the narrative reason for separation to show she was discharged by reason of medical disability as opposed to other designated physical or mental condition not amounting to a disability has been carefully considered.  However, there is insufficient evidentiary basis to support this claim.

2.  The evidence of record confirms the applicant underwent a mental status evaluation by competent military medical personnel that resulted in a diagnosed mood disorder that interfered with her adequately performing military duties. However, as evidenced by the mental status evaluation, the applicant was determined not to be suffering from a disabling medical condition that warranted separation processing through medical channels and was found medically fit for retention/separation by competent medical authority. 

3.  The applicant’s 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.  
4.  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 his separation and the applicant has failed to provide independent evidence that would call into question the validity of the military medical determinations made at the time of his discharge.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.

5.  The applicant is advised that the VA may grant disability ratings for service connected conditions and their determinations on whether a condition is service connected rests solely with that agency.  

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)                                         AR20110018733



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ABCMR Record of Proceedings (cont)                                         AR20110018733



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