IN THE CASE OF:	  

		BOARD DATE:  19 April 2012

		DOCKET NUMBER:  AR20110020721 


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 an upgrade of her general discharge and correction of item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was honorably discharged by reason for disability instead of a "condition - not a disability."

2.  The applicant states she was discharged for a condition, not a disability.  However, the Department of Veterans Affairs (VA) has determined that her condition of major depressive disorder is a disability caused by her military service.  One of the reasons the Army diagnosed her with was a depressive disorder.  

3.  As a side issue, she also states that she does not feel the Army treated her properly regarding her [security] clearance.  When asked at the Military Entrance Processing Station, she stated that her credit was not perfect.  She had problems in the past but she was not asked for details and she was put in for IT (Information Technology) training.  Three years later, her security clearance was revoked.  

4.  She also states, she was assigned to various details, anywhere she was needed, including funeral details.  Additionally, she was told she would be going to Iraq with only 6 months left on her enlistment.  She complained and she was allowed to see a military lawyer who wrote a letter on her behalf.  She was then constantly yelled at and she was told she would be extended in the service in order to send her to Iraq.  She was ultimately diagnosed with a dysthemic disorder, major depression, and an adjustment disorder.  These were considered by the Army as a personality disorder when in fact they were a disability that affected her behavior.  She should have been discharged for disability and with an honorable character of service.

5.  The applicant provides:

* DD Form 214
* VA rating decision

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 29 September 2004.  She completed training and she was awarded military occupational specialty 25B (IT Specialist).  She was assigned to the 67th Signal Battalion, 35th Signal Brigade, Fort Gordon, GA.

3.  On 16 April 2007, she departed her unit in an absent without leave (AWOL) status and on 15 May 2007, she was dropped from the Army rolls as a deserter.  She returned to military control on 27 November 2007.

4.  On 2 June 2008, she was convicted by a summary court-martial of one specification of being AWOL from 16 April to 27 November 2007.  The court sentenced her to a reprimand and a reduction to the lowest enlisted grade.  The convening authority approved the sentence.

5.  On 23 July 2008, she was reprimanded by the Commanding General, U.S. Army Signal Command, Fort Gordon, GA, for being AWOL and in affect abandoning her unit and her responsibilities as a Soldier.  The reprimand also stated that her unit deployed to Iraq in October 2007 while she was enjoying the comforts of her home.

6.  On 23 June 2008, she underwent a mental status evaluation at the Outpatient Behavioral Health Services, Eisenhower Army Medical Center, Fort Gordon, GA. The clinical psychologist stated that:

	a.  The applicant psychiatric history indicated long-standing symptoms of depression (Dysthymic Disorder, Major Depression) as well as environmental factors (family dysfunction) that have impacted negatively on her ability to effectively adjust to Army routines and regulations.  An assessment and diagnosis of her current mental status indicated the diagnosis of significant Dysthymic Disorder, Major Depression, and Adjustment Disorder with Disturbance Emotions and Conduct.  

	b.  This disorder was of sufficient severity as to significantly impair her ability to effectively perform her military duties.  Her ascribed diagnosis did not amount to disability and she is accountable to prior actions.  Given her psychiatric history and current pattern of symptoms expression, the clinical psychologist recommended her expeditious separation under Army Regulation 635-200 Personnel Separations - Enlisted Personnel), paragraph 5-17.

7.  On 31 July 2008, the applicant's immediate commander notified the applicant of his intent to initiate separation action against her for other designated physical or mental conditions.  The specific reason was the applicant's longstanding symptoms of depression as well as the environmental factors that have impacted her ability to effectively adjust to Army routines and regulations.  He recommended an under honorable conditions (general) discharge.

8.  The applicant acknowledged receipt of the separation notification memorandum and subsequently consulted with legal counsel.  She was advised of the basis for the contemplated separation action and its effects, the rights available to her, and the effect of a waiver of her rights.  She acknowledged she understood that she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her.

9.  Subsequent to this acknowledgement and legal consult, the applicant's immediate commander initiated separation action against her under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of adjustment disorder.  The immediate commander stated that the applicant was unable or unwilling to perform duties as required of her grade and specialty.  She was unable to function as a Soldier.

10.  On 4 August 2008, the intermediate commander recommended approval of the discharge with a general discharge.

11.  On 8 August 2008, consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 5-17 by reason of other designated physical or mental condition with an honorable discharge.

12.  She was accordingly discharged on 20 August 2008.  Her DD Form 214 show she was discharged under the provisions of Army Regulation 635-200, paragraph 5-17, based on a physical condition, not a disability, with a general discharge.  She was assigned a separation code of "JFV."  This form also shows she completed 3 years, 3 months, and 10 days of creditable active service and she had 210 days of lost time.

13.  There are no accompanying service medical/treatment records or other documentation that show she suffered from an injury, illness, or any medical condition that would have warranted her entry into the Army's physical disability evaluation system.  

14.  She submitted a copy of her VA rating decision, dated 16 August 2011, that shows she was awarded service-connected disability compensation for a major depressive disorder. 

15.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17 provided that a Soldier could be separated for personality disorder, not amounting to disability under Army Regulation 635-40, which interfered with assignment to or performance of duty.  The regulation required that the condition be a deeply-ingrained maladaptive pattern of behavior of long duration that interfered with the Soldier's ability to perform duty.  The regulation also directed that commanders would not take action prescribed in this chapter in lieu of disciplinary action, required that the diagnosis concluded the disorder was so severe that the Soldier’s ability to function in the military environment was significantly impaired, and stated that separation for personality disorder was not appropriate when separation was warranted under Army Regulation 635-40.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  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 physical condition, not a disability.

18.  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.  It provides for medical evaluation boards (MEBs) which 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 qualifications for retention based on the criteria in Army Regulation     40-501 (Standards of Medical Fitness).

19.  Paragraph 3-1 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 reasonably may be expected to perform because of their office, grade, rank, or rating.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation
40-501, chapter 3.  These standards include guidelines for applying them to fitness decisions in individual cases.  

20.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the physical evaluation board (PEB) rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities (VASRD).

21.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or at least a 30 percent (%) disability rating percentage.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than
20 years of service and a disability rating at less than 30%.

22.  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 an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  Unlike the 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was referred to a mental status evaluation subsequent to exhibiting signs that her immediate commander perceived to have interfered with her ability to perform her duties.  She underwent a mental status evaluation that diagnosed her as having longstanding symptoms of depression as well as the environmental factors that have impacted her ability to effectively adjust to Army routines and regulations. 

2.  Her adjustment disorder diagnosis was incompatible with military service.  Accordingly, her chain of command initiated separation action against her under the provisions of Army Regulation 635-200, paragraph 5-17.  All requirements of law and regulation were met and her rights were fully protected throughout the separation process.  

3.  With respect to her character of service:

	a.  An honorable discharge is a separation with honor and is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.  The applicant in this case was convicted by a court-martial, was reprimanded, and she had 210 days of lost time. 

	b.  Based on her record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered her service unsatisfactory.  Therefore, she is not entitled to an honorable discharge.

4.  With respect to the medical discharge:

	a.  There is no evidence in the available records and she did not provide sufficient evidence that shows at the time of her separation from active duty, she was diagnosed with any condition that would have warranted her entry into the PDES.  Medical separation is based on existence of a condition that did not meet retention standards.  She did not have any condition that did not meet retention standards. 

	b.  Subsequent to her discharge, the VA evaluated her and awarded her service-connected disability compensation.  However, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  

	c.  Her narrative reason for separation was assigned based on the fact that she was discharged under the provisions of Army Regulation 635-200, paragraph 5-17, due to a medical condition - not a disability.  Absent this condition, there was no fundamental reason to process her for discharge.  Therefore, the only valid narrative reason for separation permitted under this paragraph is "Condition - Not a Disability" and the appropriate separation code associated with this discharge is "JFV."  

5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Her narrative reason for separation and character of service are correctly shown on her DD Form 214 and she has provided insufficient evidence to warrant changing these entries.

6.  With respect to the applicant's clearance issue, the applicant did not specifically state what the error is or what correction she seeks.  Additionally, she provided no supporting documents and her records contain no documents related to her clearance.  Therefore, there is insufficient evidence to address this issue. 

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)                                         AR20110020721



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ABCMR Record of Proceedings (cont)                                         AR20110020721



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